ALADIN v. KENSINGTON INSURANCE COMPANY (2026)

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated February 5, 2024, and (2) an order of the same court April 22, 2024.  The order dated February 5, 2024, granted the plaintiffs' motion pursuant to CPLR 3126 to strike the defendant's answer upon the defendant's default in timely opposing the motion.  The order dated April 22, 2024, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate its default in timely opposing the plaintiffs' motion pursuant to CPLR 3126 to strike the defendant's answer.

ORDERED that the appeal from the order dated February 5, 2024, is dismissed (see CPLR 5511);  and it is further,

ORDERED that the order dated April 22, 2024, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs commenced this action to recover damages for breach of contract based upon the defendant's alleged failure to pay a loss as required under a policy of insurance.  The defendant joined issue and discovery proceeded.  The plaintiffs subsequently moved pursuant to CPLR 3126 to strike the defendant's answer for its failure to comply with discovery demands.  In an order dated November 13, 2023, the Supreme Court directed the defendant to comply with all discovery requests within 20 days and specified that failure to comply would result in sanctions upon further motion, unless good cause was shown.

The defendant failed to comply, and on January 12, 2024, the plaintiffs moved pursuant to CPLR 3126 to strike the defendant's answer.  The defendant failed to timely oppose the plaintiffs' motion, and the motion was granted by order dated February 5, 2024.  On March 28, 2024, the defendant moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate its default in timely opposing the plaintiffs' motion.  By order dated April 22, 2024, the Supreme Court, among other things, denied that branch of the defendant's motion.  The defendant appeals from the order dated February 5, 2024, and the order dated April 22, 2024.

The appeal from the order dated February 5, 2024, must be dismissed, as no appeal lies from an order made upon the default of the appealing party (see CPLR 5511;  Wilmington Trust Co. v. Buscemi, 207 A.D.3d 503, 504, 169 N.Y.S.3d 544).

In order to vacate its default in timely opposing the plaintiffs' motion, the defendant was required to demonstrate a reasonable excuse for the default, as well as a potentially meritorious opposition to the motion (see CPLR 5015[a][1];  PennyMac Corp. v. Dean–Phillips, 241 A.D.3d 1485, 1486, 243 N.Y.S.3d 86;  Ernest v. St. Juste, 240 A.D.3d 667, 668–669, 238 N.Y.S.3d 504).  “[W]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse” (PennyMac Corp. v. Dean–Phillips, 241 A.D.3d at 1486, 243 N.Y.S.3d 86 [internal quotation marks omitted];  see Ernest v. St. Juste, 240 A.D.3d at 669, 238 N.Y.S.3d 504).  Here, the Supreme Court did not improvidently exercise its discretion in rejecting the defendant's conclusory excuse of law office failure, which was part of a pattern of neglect demonstrated by the defendant during discovery (see Cross v. Woodbine Caterers, 241 A.D.3d 1263, 1264–1265, 240 N.Y.S.3d 795;  Raphael v. City of Peekskill, 237 A.D.3d 1232, 1233, 234 N.Y.S.3d 207;  Adams v. 161 Ct. St., LLC, 235 A.D.3d 703, 705, 227 N.Y.S.3d 428).

Since the defendant failed to establish a reasonable excuse for its default, it is unnecessary to consider whether it had a potentially meritorious opposition to the plaintiff's motion to strike the defendant's answer (see Cross v. Woodbine Caterers, 241 A.D.3d at 1265, 240 N.Y.S.3d 795;  Adams v. 161 Ct. St., LLC, 235 A.D.3d at 705, 227 N.Y.S.3d 428).

In light of our determination, the defendant's remaining contention need not be reached.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.