Steven S. Zovko, et al., respondents,
v.
Quittner Realty, LLC, et al., defendants, Folor, Inc., appellant. Index No. 14201/14
D55793
G/htr
Argued
- February 22, 2018
Harris
Beach, PLLC, White Plains, NY (John J. Phelan of counsel),
for appellant.
Rubenstein & Rynecki, Brooklyn, NY (Harper A. Smith of
counsel), for respondents.
MARK
C. DILLON, J.P. CHERYL E. CHAMBERS SYLVIA O. HINDS-RADIX
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an
action to recover damages for personal injuries, etc., the
defendant Folor, Inc., appeals from an order of the Supreme
Court, Queens County (Timothy J. Dufficy, J.), entered
October 11, 2016. The order, insofar as appealed from, denied
that branch of that defendant's motion which was pursuant
to CPLR 5015(a)(1) to vacate an order of the same court
entered May 7, 2015, granting that branch of the
plaintiffs' unopposed motion which was for leave to enter
a default judgment against that defendant on the issue of
liability upon its failure to appear or answer the complaint.
ORDERED
that the order entered October 11, 2016, is affirmed insofar
as appealed from, with costs.
On
August 21, 2014, the plaintiff Steven S. Zovko (hereinafter
the plaintiff) allegedly was injured when he fell off a
scaffold at a construction site in Queens. On September 25,
2014, the plaintiff, and his wife suing derivatively,
commenced this action, inter alia, to recover damages for
personal injuries. The defendant Folor, Inc. (hereinafter the
defendant), was served with a summons and complaint on
October 8, 2014. After the defendant failed to appear or
answer the complaint, by letter dated November 20, 2014, the
plaintiffs mailed additional copies of the summons and
complaint to the defendant's office address in Yonkers.
By letter to the defendant dated January 5, 2015, the
third-party administrator of the defendant's insurer
reserved the insurer's right to void the defendant's
general liability insurance policy ab initio and reminded the
defendant to immediately send copies of any summonses or
legal papers received in connection with the claim or action.
In
February 2015, the plaintiffs moved, inter alia, for leave to
enter a default judgment against the defendant on the issue
of liability and to schedule the matter for an inquest on the
issue of damages. In an order entered May 7, 2015, the
Supreme Court, inter alia, granted that branch of the
plaintiffs' unopposed motion which was for leave to enter
a default judgment against the defendant (hereinafter the
default order). In a letter to the defendant dated October
14, 2015, the defendant's insurer denied coverage on the
ground that the defendant first notified the insurer of this
action on August 17, 2015, after the default order had been
entered. On February 2, 2016, the defendant's attorney
filed a notice of appearance in this action with the Queens
County clerk. In March 2016, the defendant moved pursuant to
CPLR 5015(a)(1) to vacate the default order. The court
declined to accept the defendant's motion and the
defendant, thereafter, served and filed a second notice of
motion dated June 2, 2016, inter alia, pursuant to CPLR
5015(a)(1) to vacate the default order. In the order appealed
from, the court, inter alia, denied that branch of the
defendant's motion which was to vacate the default order.
The defendant appeals.
A
defendant seeking to vacate an order awarding a default must
demonstrate both a reasonable excuse for the default and the
existence of a potentially meritorious defense (see
CPLR 5015[a][1]; Skutelsky v JN Natural Fruit Corp.,
138 A.D.3d 1099, 1100; Orwell Bldg. Corp. v Bessaha,
5 A.D.3d 573, 574; Quis v Bolden, 298 A.D.2d 375).
The defendant failed to demonstrate a reasonable excuse for
its default. The defendant's mistaken belief that its
insurer would provide a defense and answer the summons and
complaint on its behalf was unreasonable given its
insurer's reservation of rights letter and request for a
copy of any summons served upon the defendant, and the
plaintiffs' motion for leave to enter a default judgment
(see Medas v Rochpark Realty, LLC, 150 A.D.3d 1221,
1223; Spitzer v Landau, 104 A.D.3d 936, 936-937;
Trepel v Greenman-Pedersen, Inc., 99 A.D.3d 789,
791; Jackson v Professional Transp. Corp., 81 A.D.3d
602, 603; Lemberger v Congregation YetevLevD'Satmar,
Inc., 33 A.D.3d 671, 672). Furthermore, this alleged
mistake was not an isolated error, but part of a pattern of
''repeated neglect'' (Roussodimou v
Zafiriadis, 238 A.D.2d 568, 569; see Wells Fargo
Bank, N.A. v Krauss, 128 A.D.3d 813, 814; Alterbaum
v Shubert Org., Inc., 80 A.D.3d 635, 636; Majestic
Clothing Inc. v East Coast Stor., LLC, 18 A.D.3d 516,
518). In this regard, the defendant was aware of the default
order, but took no steps to vacate the default until five
months after its insurer disclaimed coverage (see Wells
Fargo Bank, N.A. v Krauss, 128 A.D.3d at 815; Miller
v Ateres Shlomo, LLC, 49 A.D.3d 612, 613; Thompson v
Steuben Realty Corp., 18 A.D.3d 864, 865; Robinson v
1068 Flatbush Realty, Inc., 10 A.D.3d 716, 716-717).
Since the defendant failed to demonstrate a reasonable excuse
for its default, we need not reach the issue of whether it
demonstrated the existence of a potentially meritorious
defense (see Medas v Rochpark Realty, LLC, 150
A.D.3d at 1223; Jing Shan Chen v R & K 51 Realty,
Inc., 148 A.D.3d 689, 691; Bernstein v Geiss,
111 A.D.3d 774, 775).
Accordingly,
that branch of the defendant's motion which was to vacate
the ...