Blair v. Kennedy Event Servs., Inc.

• Decision Date: 19 December 2018
• Docket Number: Index No. 159144/2016
• Parties: TROY BLAIR, Plaintiff v. KENNEDY EVENT SERVICES, INC., GREATER NEW YORK CITY AFFILIATE OF THE SUSAN G. KOMEN BREAST CANCER AWARENESS FOUNDATION, INC., and SUSAN G. KOMEN FOUNDATION, INC., LEAD DOG MARKETING GROUP INC., and GROUNDWORK OPERATIONS, LLC Defendants
• Court: New York Supreme Court

2018 NY Slip Op 33370(U)

TROY BLAIR, Plaintiff
v.
KENNEDY EVENT SERVICES, INC.,
GREATER NEW YORK CITY AFFILIATE
OF THE SUSAN G. KOMEN BREAST CANCER AWARENESS FOUNDATION, INC.,
and SUSAN G. KOMEN FOUNDATION, INC.,
LEAD DOG MARKETING GROUP INC.,
and GROUNDWORK OPERATIONS, LLC Defendants

Index No. 159144/2016

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: December 31, 2018
December 19, 2018

NYSCEF DOC. NO. 86

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff seeks damages for injuries he suffered September 13, 2015, when he struck a metal banner frame while riding his bicycle in a bicycle lane on Central Park West in New York County. Plaintiff alleges that the banner frame was placed in the bicycle lane when defendants were setting up for the Susan G. Komen Race for the Cure held that day in Central Park.

Plaintiff served his summons and complaint on Michael Olear, a co-owner of defendant Kennedy Event Services, November 23, 2016. Olear forwarded the complaint to Kennedy Event Services' insurance agent December 8, 2016, but Kennedy Event Services never answered. Plaintiff served his motion for a default judgment on Kennedy Event Services' liability February 10, 2017, which the court (Mendez. J.) granted without opposition in an

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order dated March 20, 2017. C.P.L.R. § 3215. On April 6, 2017, plaintiff served Olear with notice of entry of this order. On February 2, 2018, Kennedy Event Services moved to vacate this default judgment. C.P.L.R. § 5015(a)(1). To vacate the default judgment, Kennedy Event Services must demonstrate a reasonable excuse for the default in answering and a meritorious defense to the action. Shmuklyer v. Feintuch Communications, Inc., 158 A.D.3d 469, 470 (1st Dep't 2018); Johnson-Roberts v Ira Judelson Bail Bonds, 140 A.D.3d 509, 509 (1st Dep't 2016); Terrapin Indus., LLC v Bank of New York, 137 A.D.3d 569, 570 (1st Dep't 2016); Rodgers v. 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 A.D.3d 510, 510 (1st Dep't 2010).

II. KENNEDY EVENT SERVICES' EXCUSE FOR ITS DEFAULT

Kennedy Event Services' reasonable belief that its insurer was defending the action after Kennedy Event Services forwarded the summons and complaint to its insurance agent is a reasonable excuse for its default. Tanpinco v. Royal Caribbean Intl., 79 A.D.3d 484, 484 (1st Dep't 2010); Rodgers v. 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 A.D.3d at 510; Heskel's W. 38th St. Corp. v. Gotham Constr. Co. LLC, 14 A.D.3d 306, 307 (1st Dep't 2005). Olear attests that he received the summons and complaint in late November 2016, forwarded it to his insurance agent December 8, 2016, and expected that the insurer would handle the defense of the action. His insurance agent's email, albeit a year later in December 2017, that the agent had referred the action to the insurer in January 2017 supports Olear's

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expectation. The lapse of a year, however, raises a serious question why Olear did not check with the agent or the insurer regarding the status of the action during that time.

During 2017, Olear continued to forward documents to the insurance agent as if the insurer was defending the action. These communications further support Olear's expectation that the insurer was handling the action, demonstrating a reasonable excuse for Kennedy Event Services' default. Tanpinco v. Royal Caribbean Intl., 79 A.D.3d at 484; Rodgers v. 66 E. Tremont...