RICHARD G. VOGT, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF LINDA VOGT, DECEASED, PLAINTIFF-APPELLANT,
WILLIAM B. EBERHARDT, JR., AND JULIA A. BERGAN, DEFENDANTS-RESPONDENTS.
MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, ROCHESTER (RAUL E. MARTINEZ OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND
from an order of the Supreme Court, Monroe County (Renee
Forgensi Minarik, A.J.), entered October 6, 2016. The order,
inter alia, granted the motion of defendants to vacate a
default judgment and vacated the default judgment.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff and Linda Vogt, now deceased, commenced this action
seeking damages for injuries sustained by Vogt when she fell
after she caught the heel of her shoe in the track of a
sliding glass door at the Sherwood Inn (Inn) in September
2012. The Inn is owned and operated by defendant William B.
Eberhardt, Jr., and defendant Julia A. Bergan is an employee
of the Inn.
August 2014, plaintiff and Vogt commenced an action (first
action) against Dining Associates, Inc., doing business as
Sherwood Inn (Dining Associates), alleging that Vogt's
injuries resulted from the negligence of Dining Associates.
Eberhardt, who is also the owner of Dining Associates,
forwarded the summons and complaint to the insurance carrier
for the Inn, Nationwide Insurance Company (Nationwide), and
Nationwide assigned counsel to defend Dining Associates in
the first action. In September 2015, after plaintiff and Vogt
learned that the Inn was not owned by Dining Associates, they
commenced the instant action against defendants. Defendants
forwarded the summons and complaint to Nationwide, just as
Eberhardt had done in the first action. Nationwide received
the documents and did not deny coverage to defendants, but
Nationwide failed to assign counsel to represent defendants.
Defendants subsequently defaulted in the instant action, and
Supreme Court granted the motion of plaintiff and Vogt for a
default judgment on the issue of liability. Plaintiff now
appeals from an order that granted defendants' motion to
vacate the default judgment. We affirm.
party seeking to vacate an order or judgment on the ground of
excusable default must offer a reasonable excuse for its
default and a meritorious defense to the action"
(Wells Fargo Bank, N.A. v Dysinger, 149 A.D.3d 1551,
1552 [4th Dept 2017]; see Calaci v Allied Interstate,
Inc. [appeal No. 2], 108 A.D.3d 1127, 1128 [4th Dept
2013]). The determination whether the moving party's
excuse is reasonable lies within the sound discretion of the
court (see Abbott v Crown Mill Restoration Dev.,
LLC, 109 A.D.3d 1097, 1099 [4th Dept 2013]).
reject plaintiff's contention that defendants failed to
proffer a reasonable excuse for their default. Defendants
submitted an affidavit of the claims specialist for
Nationwide who was responsible for managing their defense,
which established that the claims specialist had received
copies of the summons and complaint in the instant action and
determined that defendants were entitled to a defense and
indemnification. Although she communicated that information
to the law firm that was defending Dining Associates in the
first action, the claims specialist inadvertently neglected
to assign counsel to represent defendants in the instant
action. We conclude that Nationwide's inadvertent failure
to assign counsel to defendants is a reasonable excuse for
their default (see Cary v Cimino, 128 A.D.3d 1460,
1461 [4th Dept 2015]; Accetta v Simmons, 108 A.D.3d
1096, 1097 [4th Dept 2013]; Hayes v Maher & Son,
303 A.D.2d 1018, 1018 [4th Dept 2003]). We note that
defendants "evidenc[ed] a good faith intent to defend
the proceeding on the merits" (Reilly v City of
Rome, 114 A.D.3d 1255, 1256 [4th Dept 2014] [internal
quotation marks omitted]), and plaintiff, who caused a
lengthy delay in the first action by failing to comply with
discovery demands, was not prejudiced by the delay in this
action (see Accetta, 108 A.D.3d at 1097).
to plaintiff's further contention, we conclude that
defendants proffered a meritorious defense to the action by
submitting evidence establishing a prima facie case of
trivial defect (see generally Wells Fargo Bank,
N.A., 149 A.D.3d at 1552; Calaci, 108 A.D.3d at
1129). Defendants submitted evidence establishing that the
track of the sliding glass door was approximately half an
inch wide, and similar terrain differentials have been held
to be trivial as a matter of law (see Leverton v Peters
Groceries, 267 A.D.2d 1014, 1015 [4th Dept ...