Integon Nat'l Ins. Co. v. Noterile
| Decision Date | 04 October 2011 |
| Citation | 88 A.D.3d 654,2011 N.Y. Slip Op. 07005,930 N.Y.S.2d 260 |
| Parties | INTEGON NATIONAL INSURANCE COMPANY, respondent,v.Anthony C. NOTERILE, et al., defendants,Young Hoon Kim, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellants.McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondent.DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action for a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendants Anthony C. Noterile and Whitestone Automotive, Inc., in an underlying personal injury action entitled Kim v. Noterile, pending in the Supreme Court, Kings County, under Index No. 37669/05, the defendants Young Hoon Kim, Jan Di Kim, and Seul K. Kim appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated April 26, 2010, as granted that branch of the plaintiff's motion which was, in effect, for leave to enter judgment upon their default in appearing or answering the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants Young Hoon Kim, Jan Di Kim, and Seul K. Kim (hereinafter collectively the Kims) commenced an action against Anthony C. Noterile and Whitestone Automotive, Inc. (hereinafter Whitestone), who are not parties to this appeal, to recover damages for personal injuries. The plaintiff Integon National Insurance, Co. (hereinafter Integon), which insured a tow-truck owned by Whitestone and operated by Noterile, commenced this action for a judgment declaring that it is not obligated to defend and indemnify Noterile and Whitestone in the underlying personal injury action. The Supreme Court granted that branch of Integon's motion which was, in effect, for leave to enter a default judgment against the Kims. We affirm insofar as appealed from.
Integon established its entitlement to a default judgment against the Kims by submitting proof of service of the summons and the complaint, the facts constituting the claim, and the Kims' default ( see CPLR 3215[f]; George v. Yoma Dev. Group, Inc., 83 A.D.3d 776, 920 N.Y.S.2d 696; Miterko v. Peaslee, 80 A.D.3d 736, 915 N.Y.S.2d 314). “A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a...
To continue reading
Request your trial
-
Fish King Enterprises v. Countrywide Ins. Co.
...be reached by this Court as it is an issue of law that appears on the face of the record which, had it been brought to the attention [930 N.Y.S.2d 260] of the Supreme Court, could not have been avoided ( see Romain v. Grant, 60 A.D.3d 838, 874 N.Y.S.2d 380; Lischinskaya v. Carnival Corp., 5......
-
Bank v. 11–13–15 Old Fulton D Llc
...that the first counterclaim was premised on conduct occurring before the execution of the loan documents, there could be no reasonable[88 A.D.3d 654] reliance on any promise to provide a subsequent construction loan in light of the merger and waiver-of-defense provisions in the loan documen......
-
Reverse Mortg. Solutions, Inc. v. Lanfrit
...by the court (see Bank of New York v. Espejo, 92 A.D.3d 707, 939 N.Y.S.2d 105 [2d Dept.2012] ; Integon Natl. Ins. Co. v. Noterile, 88 A.D.3d 654, 930 N.Y.S.2d 260 [2d Dept.2011] ). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial cou......
-
Deutsche Bank Trust Co. v. Marous
...117 A.D.3d 995, 986 N.Y.S.2d 578 ; Vigo v. 501 Second St. Holding Corp., 100 A.D.3d 871, 955 N.Y.S.2d 99 ; Integon Natl. Ins. Co. v. Noterile, 88 A.D.3d 654, 655, 930 N.Y.S.2d 260 ; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403 ). The determination of what c......