Provident Life & Casualty Insurance v. Hersko

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1998
• Status: Published

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.