Warn v. Choi-Lee

Appellate Division of the Supreme Court of New York

Warn v. Choi-Lee

291 A.D.2d 490, 738 N.Y.S.2d 228, 2002 N.Y. App. Div. LEXIS 1794

Appellate Division of the Supreme Court of the State of New York·Decided February 19, 2002·Published·Cited by 5 cases

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated June 12, 2001, which denied his motion for leave to enter a judgment against the defendants upon their failure to timely answer or appear in the action and conditionally granted the defendants’ cross motion for leave to answer and appear in the action.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Kings County, for an inquest on damages.

A party seeking to vacate a default in answering or appearing must make a showing of a justifiable excuse for the default, and a meritorious defense (see, Hazen v Bottiglieri, 286 AD2d 708; Miles v Blue Label Trucking, 232 AD2d 382). The only excuse offered for failure to timely serve an answer was delay caused by the defendants’ insurance carrier, which is insufficient (see, Hazen v Bottiglieri, supra). Ritter, J.P., Feuerstein, O’Brien, H. Miller and Townes, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated June 12, 2001, which denied his motion for leave to enter a judgment against the defendants upon their failure to timely answer or appear in the action and conditionally granted the defendants’ cross motion for leave to answer and appear in the action.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Kings County, for an inquest on damages.

A party seeking to vacate a default in answering or appearing must make a showing of a justifiable excuse for the default, and a meritorious defense (see, Hazen v Bottiglieri, 286 AD2d 708; Miles v Blue Label Trucking, 232 AD2d 382). The only excuse offered for failure to timely serve an answer was delay caused by the defendants’ insurance carrier, which is insufficient (see, Hazen v Bottiglieri, supra). Ritter, J.P., Feuerstein, O’Brien, H. Miller and Townes, JJ., concur.

Warn v. Choi-Lee, 291 A.D.2d 490, 738 N.Y.S.2d 228, 2002 N.Y. App. Div. LEXIS 1794 (N.Y. Ct. App. 2002).

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