Romero v. Alezeb Deli Grocery Inc.

115 A.D.3d 496, 981 N.Y.S.2d 696

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2014
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 25, 2013, which granted defendant 2024 Second Avenue LLC’s motion to vacate the default judgment entered against it, unanimously affirmed, without costs.

The motion court exercised its discretion in a provident manner in granting defendant’s motion. The unexplained delay of defendant’s insurance broker in forwarding the summons and complaint to defendant’s insurance carrier constituted a reasonable excuse for defendant’s failure to appear (see Castillo v Garzon-Ruiz, 290 AD2d 288, 290 [1st Dept 2002]). Moreover, the record shows that the insurance broker did not respond to telephone calls from plaintiffs counsel regarding the status of the claim, and there is no indication that defendant’s failure in answering the complaint was willful, or that plaintiff was prejudiced by the delay (see Lee v 215 W. 88 St. Holdings, LLC, 106 AD3d 460, 461 [1st Dept 2013]; Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [1st Dept 2011]).

Defendant also established potentially meritorious defenses in this action. The record demonstrates that defendant did not create the icy condition, and there was no conclusive evidence, at this juncture, that it had notice of the condition.

Concur— Mazzarelli, J.E, Sweeny, DeGrasse, Manzanet-Daniels and Gische, JJ.