MARTINEZ v. ALESSANDRO CUSTOM BUILDERS DEMOLITION INC

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

Hugo MARTINEZ, appellant, v. D'ALESSANDRO CUSTOM BUILDERS & DEMOLITION, INC., respondent, et al., defendant.

Decided: June 24, 2008

PETER B. SKELOS, J.P., FRED T. SANTUCCI, JOSEPH COVELLO, WILLIAM E. McCARTHY, and CHERYL E. CHAMBERS, JJ. Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), for appellant. Muscarella & DiRaimo, LLP, Garden City, N.Y. (Gary F. Borrelli of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis, J.), entered July 12, 2007, which granted the motion of the defendant D'Alessandro Custom Builders & Demolition, Inc., inter alia, to vacate a prior order of the same court entered March 12, 2007, granting his unopposed motion for leave to enter judgment against that defendant upon its default in appearing or answering the complaint, and to compel him to accept its late answer.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the motion of the defendant D'Alessandro Custom Builders & Demolition, Inc., inter alia, to vacate the prior order entered March 12, 2007, and to compel the plaintiff to accept its late answer is denied.

 A defendant seeking to vacate its default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate the existence of a meritorious defense to the action (see CPLR 5015[a][1];  Krieger v. Cohan, 18 A.D.3d 823, 796 N.Y.S.2d 633;  Weinberger v. Judlau Contr., 2 A.D.3d 631, 768 N.Y.S.2d 338;  Kaplinsky v. Mazor, 307 A.D.2d 916, 762 N.Y.S.2d 902).   While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Matter of Gambardella v. Ortov Light., 278 A.D.2d 494, 717 N.Y.S.2d 923), a general excuse that the default was caused by delays occasioned by the defendant's insurance carrier is insufficient (see Lemberger v. Congregation Yetev Lev D'Satmar, Inc., 33 A.D.3d 671, 672, 822 N.Y.S.2d 597;  Juseinoski v. Board of Educ. of City of N.Y., 15 A.D.3d 353, 790 N.Y.S.2d 162;  Campbell v. Ghafoor, 8 A.D.3d 316, 317, 777 N.Y.S.2d 718;  Weinberger v. Judlau Contr., 2 A.D.3d 631, 768 N.Y.S.2d 338;  Franklin v. Williams, 2 A.D.3d 400, 767 N.Y.S.2d 863).   In addition, the unverified “affidavit” of the respondent's president and the general denials contained in the verified answer were insufficient to rebut the plaintiff's prima facie showing of a violation of Labor Law § 240(1) (see Thakurdyal v. 341 Scholes St., LLC, 50 A.D.3d 889, 855 N.Y.S.2d 641;  Figueroa v. Luna, 281 A.D.2d 204, 205, 721 N.Y.S.2d 635;  Stein v. Yonkers Contr., 244 A.D.2d 473, 474, 664 N.Y.S.2d 331).   Accordingly, the Supreme Court improvidently exercised its discretion in granting the respondent's motion, inter alia, to vacate its default in appearing or answering and to compel the plaintiff to accept its late answer.

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