Triangle Transport, Inc. v. Markel Insurance

18 A.D.3d 229, 794 N.Y.S.2d 363, 2005 N.Y. App. Div. LEXIS 4970

Opinion

Order, Supreme Court, New York County (Carol Edmead, J.), entered October 29, 2004, which granted defendant’s motion to vacate the default judgment entered against it, unanimously affirmed, without costs.

It is not contested that defendant insurer has a meritorious defense to this action by its insured alleging wrongful disclaimer. Moreover, defendant has satisfactorily shown a reasonable excuse for its failure to answer the complaint by adducing evidence, in admissible form, demonstrating that although it duly forwarded plaintiffs pleadings to its claims administrator, the pleadings were inadvertently mislaid or incorrectly filed and accordingly never assigned to counsel for handling. Defendant was unaware that the action had gone undefended until it received a notice of execution on the judgment. The requirements for vacatur of the default judgment having thus been met, defendant’s motion was properly granted (see CPLR 5015 [a] [1]; 2005; Burgos v Allcity Ins. Co., 272 AD2d 195 [2000]). Concur—Buckley, P.J., Saxe, Nardelli, Williams and Catterson, JJ.