Opinion
2014-03-11
Aireen ROMERO, Plaintiff–Appellant, v. ALEZEB DELI GROCERY INC., et al, Defendants, 2024 Second Avenue LLC, Defendant–Respondent.
Lerner, Arnold & Winston, LLP, Garden City (John V. Decolator of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Lerner, Arnold & Winston, LLP, Garden City (John V. Decolator of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 25, 2013, which granted defendant 2024 Second Avenue LLC's motion to vacate the default judgment entered against it, unanimously affirmed, without costs.
The motion court exercised its discretion in a provident manner in granting defendant's motion. The unexplained delay of defendant's insurance broker in forwarding the summons and complaint to defendant's insurance carrier constituted a reasonable excuse for defendant's failure to appear ( see Castillo v. Garzon–Ruiz, 290 A.D.2d 288, 290, 736 N.Y.S.2d 37 [1st Dept.2002] ). Moreover, the record shows that the insurance broker did not respond to telephone calls from plaintiff's counsel regarding the status of the claim, and there is no indication that defendant's failure in answering the complaint was willful, or that plaintiff was prejudiced by the delay ( see Lee v. 215 W. 88 St. Holdings, LLC, 106 A.D.3d 460, 461, 965 N.Y.S.2d 865, [1st Dept.2013]; Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413–414, 914 N.Y.S.2d 130 [1st Dept.2011] ).
Defendant also established potentially meritorious defenses in this action. The record demonstrates that defendant did not create the icy condition, and there was no conclusive evidence, at this juncture, that it had notice of the condition.