Provident Life & Casualty Insurance v. Hersko

246 A.D.2d 365, 666 N.Y.S.2d 419, 1998 N.Y. App. Div. LEXIS 233

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 3,1997, which granted defendant’s motion to vacate a default judgment, unanimously affirmed, with costs.

The motion court properly exercised its discretion in finding that defendant showed a reasonable excuse for the default (see, Hunter v Enquirer/Star, Inc., 210 AD2d 32), and that his affidavit of merit was sufficient (see, Mufalli v Ford Motor Co., 105 AD2d 642, 643). The record indicates issues as to whether defendant did, in fact, fail to provide accurate, material information that he was under a duty to provide and whether such nondisclosure, if any, affected plaintiff’s decision to issue the insurance policy in question (see, Smirlock Realty Corp. v Title Guar. Co., 52 NY2d 179, 187). Concur—Sullivan, J. P., Milonas, Ellerin, Nardelli and Mazzarelli, JJ.