IN RE: NEW YORK CENTRAL MUTUAL INSURANCE COMPANY (2003)

Supreme Court, Appellate Division, First Department, New York.

IN RE: NEW YORK CENTRAL MUTUAL INSURANCE COMPANY, Petitioner-Respondent, v. Angelo JOVINE, Respondent, James Hawkins, Proposed Additional Respondent, Allstate Insurance, Proposed Additional Respondent-Appellant.

Decided: November 25, 2003

BUCKLEY, P.J., TOM, ELLERIN, GONZALEZ, JJ.

Michael E. Sande, for Petitioner-Respondent. Marshall D. Sweetbaum, for Respondent-Appellant.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 24, 2003, which, in a proceeding to stay an uninsured motorist arbitration, denied additional respondent-appellant insurer's motion to vacate its default in appearing at a framed issue hearing, with leave to renewupon proper papers, unanimously affirmed, with costs.

The motion is supported by an affirmation of an attorney in the law firm representing appellant, which is made on information and belief and, for an excuse, simply states that appellant's failure to attend the framed issue hearing was due to “miscalendaring.” The motion court properly rejected this statement as inexplicably made by a person who lacks personal knowledge of the calendaring of the framed issue hearing, and otherwise lacking the detail necessary to show that the failure to calendar the matter accurately was excusable (see Matter of Wynyard v. Antique Co., 247 A.D.2d 265, 668 N.Y.S.2d 617).

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