Opinion
2014-04585
12-31-2014
Lucy BLYTHE, respondent, v. BJ'S WHOLESALE CLUB, INC., defendant, Phoenix Beverages, Inc., appellant (and a third-party action).
James J. Toomey, New York, N.Y. (Eric P. Tosca and Frederick Schmidt of counsel), for appellant. Mark E. Feinberg, Brooklyn, N.Y., for respondent.
James J. Toomey, New York, N.Y. (Eric P. Tosca and Frederick Schmidt of counsel), for appellant.
Mark E. Feinberg, Brooklyn, N.Y., for respondent.
Opinion In an action to recover damages for personal injuries, the defendant Phoenix Beverages, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), entered April 2, 2014, as denied that branch of its motion which was pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Partnow, J.), dated April 24, 2012, granting the plaintiff's unopposed motion for leave to enter judgment against it upon its failure to appear or answer the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A defendant moving to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must establish a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense (see CPLR 5015[a][1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; Hill v. Stone, 113 A.D.3d 595, 977 N.Y.S.2d 906 ; Kim v. S & M Caterers, Inc., 112 A.D.3d 581, 975 N.Y.S.2d 903 ). Here, the appellant's conclusory allegations that it “misplaced” the summons and complaint, as well as the plaintiff's motion for leave to enter a default judgment against it and the order granting that motion, did not constitute a reasonable excuse for its default (see generally Mora v. Scarpitta, 52 A.D.3d 663, 861 N.Y.S.2d 110 ; Montague v. Rivera, 50 A.D.3d 656, 854 N.Y.S.2d 749 ; Matter of Vanessa F., 9 A.D.3d 464, 779 N.Y.S.2d 917 ; Jackson–Cutler v. Long, 2 A.D.3d 590, 768 N.Y.S.2d 360 ). Further, the appellant's insurance carrier's lengthy delay before defending the action, without more, was insufficient to establish a reasonable excuse for the default (see Gartner v. Unified Windows, Doors & Siding, Inc., 71 A.D.3d 631, 632, 896 N.Y.S.2d 415 ; Kramer v. Oil Servs., Inc., 65 A.D.3d 523, 523–524, 882 N.Y.S.2d 906 ; Leifer v. Pilgreen Corp., 62 A.D.3d 759, 760, 878 N.Y.S.2d 451 ; Martinez v. D'Alessandro Custom Bldrs. & Demolition, Inc., 52 A.D.3d 786, 787, 861 N.Y.S.2d 737 ). Since the appellant failed to demonstrate a reasonable excuse for its default, this Court need not consider whether it proffered a potentially meritorious defense to the action (see JP Morgan Chase Bank, N.A. v. Russo, 121 A.D.3d 1048, 996 N.Y.S.2d 68 ; Selechnik v. Law Off. of Howard R. Birnbach, 120 A.D.3d 1220, 991 N.Y.S.2d 894 ; Deutsche Bank Natl. Trust Co. v. Conway, 99 A.D.3d 755, 951 N.Y.S.2d 892 ). The appellant's remaining contentions are either improperly raised for the first time on appeal or without merit.
RIVERA, J.P., LEVENTHAL, CHAMBERS and SGROI, JJ., concur.