NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA v. DIAMOND (2007)

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

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Plaintiff-Appellant, v. Wayne DIAMOND, Defendant-Respondent.

Decided: April 19, 2007

ANDRIAS, J.P., FRIEDMAN, BUCKLEY, SWEENY, CATTERSON, JJ.

D'Amato & Lynch, New York (Liza A. Chafiian of counsel), for appellant. Mintz & Gold, LLP, New York (Steven W. Gold, of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 18, 2006, which granted defendant's motion to vacate the default judgment entered against him and restore the case to the calendar, unanimously affirmed, with costs.

The record discloses that plaintiff allowed the case to lie dormant for almost ten years, and that when the case was finally to be tried defendant's health had so deteriorated that he was unable to communicate effectively with counsel. Defendant adequately demonstrated, through the sworn affidavit of his doctor, that his default was due to extreme anxiety and depression during the relevant period. Defendant has also adequately demonstrated the meritorious nature of his defense through his discovery responses. In view of defendant's showing, and the strong policy favoring adjudication on the merits (Navarro v. A. Trenkman Estate, Inc., 279 A.D.2d 257, 719 N.Y.S.2d 34 [2001] ), the motion court properly exercised its discretion in granting defendant's motion.

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