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State Farm Mutual Automobile Insurance Company As Subrogee of v. Iris Correa

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 11, 2011

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF
MYA M. THAN,
APPELLANT,
v.
IRIS CORREA,
RESPONDENT.

Appeal from orders of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 16, 2009 and dated December 16, 2009, respectively.

State Farm Mut. Auto. Ins. Co. v Correa

Decided on April 11, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT:PESCE, P.J., GOLIA and STEINHARDT, JJ .

The order entered October 16, 2009 granted defendant's motion to vacate a default judgment. The order dated December 16, 2009 denied plaintiff's motion for leave to reargue defendant's motion.

ORDERED that the appeal from the order entered October 16, 2009 is dismissed; and it is further,

ORDERED that the order dated December 16, 2009 is affirmed, without costs.

In this subrogation action, defendant moved to vacate a default judgment that had been entered against it. Upon plaintiff's failure to submit written opposition papers by the motion's return date, defendant's motion was granted by the Civil Court, by order entered October 16, 2009, and the matter was restored to the trial calendar. Thereafter, plaintiff moved for leave to reargue defendant's motion, contending that the Civil Court had improvidently exercised its discretion on the return date of defendant's motion in denying its application for an adjournment in order for it to submit opposition papers. By order dated December 16, 2009, the Civil Court denied plaintiff's motion for leave to reargue.

Plaintiff admitted that it had not submitted written opposition to defendant's motion to vacate the default judgment. Accordingly, the order entered October 16, 2009 is deemed to have been entered on default. As no appeal lies from an order entered on the default of the appealing party, plaintiff's appeal from that order is dismissed (see CPLR 5511; see also Benitez v Olson, 29 AD3d 503 [2006]).

The proper remedy for a party seeking relief from an order granting a motion upon its default is to move to vacate the order rather than to seek leave to reargue the motion. Consequently, the Civil Court should have treated plaintiff's motion for leave to reargue as a motion to vacate the October 16, 2009 order. In order to be successful on the motion, plaintiff was required to demonstrate, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). As plaintiff did not offer any explanation for its failure to submit written opposition papers on the return date of the prior motion, we find no basis to disturb the Civil Court's denial of plaintiff's motion. Accordingly, the order dated December 16, 2009 is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: April 11, 2011

20110411

© 1992-2011 VersusLaw Inc.



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