Opinion
7782N Index 261052/14
12-04-2018
In re TRI–STATE CONSUMER INSURANCE COMPANY, Petitioner–Appellant, v. HEREFORD INSURANCE COMPANY, Respondent–Respondent.
Thomas Torto, New York, for appellant. Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for respondent.
Thomas Torto, New York, for appellant.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for respondent.
Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about June 29, 2017, which denied petitioner Tri–State's motion to vacate the order and judgment (one paper), same court and Justice, entered December 28, 2015, denying upon default Tri–State's petition to vacate two inter-company arbitration awards in favor of respondent Hereford Insurance Company (Hereford) and granting Hereford's cross motion to confirm the arbitration awards, and denied Tri–State's motion to stay enforcement of the judgment, entered February 16, 2016, in Hereford's favor and against Tri–State in the total sum of $111,145.34, unanimously affirmed, without costs.
Although "there exists a strong public policy in favor of disposing of cases on their merits, ... this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action" ( Johnson–Roberts v. Ira Judelson Bail Bonds, 140 A.D.3d 509, 509, 34 N.Y.S.3d 421 [1st Dept. 2016] ). Despite Tri–State's contention that this Court has excused defaults caused by an attorney's inadvertent failure to make a court appearance due to lack of notice (see Toos v. Leggiadro Intl., Inc., 114 A.D.3d 559, 980 N.Y.S.2d 448 [1st Dept. 2014] ), "claims of law office failure which are ‘conclusory and unsubstantiated’ cannot excuse default" ( Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept. 2012] ).
At least two of Tri–State's multiple defaults lack a substantiated excuse—its failure to submit opposition, and its failure to appear at the November 16, 2015 hearing despite counsel's assignment two months prior—and those incidents, in addition to a pattern of dilatory conduct, warrant affirmance of the order on appeal. Since the default was not excusable, Tri–State's motion to vacate the judgment was properly denied, regardless of whether it presented a potentially meritorious defense ( Amir M.C.W. v. 2343, Inc., 126 A.D.3d 453, 454, 2 N.Y.S.3d 358 [1st Dept. 2015] ).