Seccombe v. Serafina Restaurant Corp.

2 A.D.3d 516, 767 N.Y.S.2d 875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 3, 2002, which, inter alia, granted the defendants’ motion pursuant to CPLR 5015 (a) (1) to vacate their default in appearing and answering.

Ordered that the order is affirmed, with costs.

A party seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The defendants reasonably relied on the insurer of the defendant Serafina Restaurant Corp. (hereinafter Serafina) to interpose an answer after the defendant Frank Caniglia, the president of Serafina, timely delivered the summons and complaint to his insurance broker, and the carrier failed to disclaim coverage or answer (see Perez v Linshar Realty Corp., 259 AD2d 532, 533 [1999]; Fire Is. Pines v Colonial Dormer Corp., 109 AD2d 815, 816 [1985]; Swidler v WorldWide Volkswagen Corp., 85 AD2d 239 [1982]). In addition, the defendants set forth facts sufficient to establish that they have a meritorious defense (see Clarke v Brooklyn Union Gas Co., 297 AD2d 779 [2002]; Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [1993]). Accordingly, the Supreme Court providently exercised its discretion in granting the defendants’ motion to vacate the default. Florio, J.P., Krausman, Luciano, Townes and Rivera, JJ., concur.