Stewart v. State Farm Mutual Automobile Insurance

71 A.D.2d 705, 418 N.Y.S.2d 250, 1979 N.Y. App. Div. LEXIS 12913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1979
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered November 27, 1978 in Warren County, which denied defendant’s motion seeking permission to serve an answer. On August 17, 1978, plaintiff commenced the present action seeking a declaratory judgment declaring that a certain insurance policy insuring plaintiffs vehicle and issued by appellant was in full force and effect on May 31, 1978 on which day said vehicle was involved in an accident. Following appellant’s failure to answer, plaintiff obtained a default judgment against appellant. Shortly thereafter, appellant, by order to show cause, moved for leave to serve an answer. Special Term treated the motion as one to vacate a default judgment and denied it. This appeal ensued. In order to be granted the relief requested, it was necessary for appellant to show both that the default was excusable and that it has a meritorious defense (Gutbrodt v Gutbrodt, 64 AD2d 991). In order to establish an excusable default, appellant averred that the uniqueness of the allegations in the complaint and the facts involved required extensive investigation and such investigation was not completed in the time required to serve an answer. In our view, such excuses provide inadequate reasons for failing to answer and, therefore, appellant failed to demonstrate an excusable default (see John Malasky, Inc. v Mayone, 54 AD2d 1059). Having so concluded, we need not consider the merits of appellant’s alleged defenses. The order should be affirmed. Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.