Schwartz v. Port Imperial Ferry Corp.

• Decision Date: 28 September 2021
• Docket Number: 14216,Case No. 2020-03298,Index No. 157203/18
• Citation: 151 N.Y.S.3d 870 (Mem),197 A.D.3d 1057
• Parties: Todd SCHWARTZ, Plaintiff–Appellant, v. PORT IMPERIAL FERRY CORP. doing business as N.Y. Waterway et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1057

151 N.Y.S.3d 870 (Mem)

Todd SCHWARTZ, Plaintiff–Appellant,

v.PORT IMPERIAL FERRY CORP. doing business as N.Y. Waterway et al., Defendants–Respondents.

14216

Index No. 157203/18

Case No. 2020-03298

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

ENTERED September 28, 2021

Patrick S. Owen, PLLC, Middletown (Patrick S. Owen of counsel), for appellant.

Kaufman Dolowich Voluck, LLP, New York (Gino A. Zonghetti and Kenneth B. Danielsen of counsel), for respondents.

Acosta, P.J., Singh, Kennedy, Mendez, Higgitt, JJ.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 8, 2020, which, in this action for personal injuries, granted defendants’ motion to vacate the default judgment in answering the complaint and the decision awarding damages following an inquest, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting defendants’ motion (see generally Rodgers v. 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 A.D.3d 510, 893 N.Y.S.2d 55 [1st Dept. 2010] ). Defendants demonstrated a reasonable excuse for their default, namely, that the senior legal adjuster of the third-party claims management company, who was responsible for informing the insurance broker and insurer about any actions commenced against defendants failed to take the appropriate action, and, consequently, defense counsel was never assigned (see CPLR 5015[a][1] ; Triangle Transp., Inc. v. Markel Ins. Co., 18 A.D.3d 229, 794 N.Y.S.2d 363 [1st Dept. 2005] ). It was not until the default order was entered that the senior legal adjuster realized she had lost track of this action (see e.g. Parker v. I.E.S.I. N.Y. Corp., 279 A.D.2d 395, 395, 720 N.Y.S.2d 59 [1st Dept. 2001], lv dismissed 96 N.Y.2d 927, 733 N.Y.S.2d 363, 759 N.E.2d 361 [2001] ).

Furthermore, defendants sufficiently alleged a meritorious defense. Defendants raise potential meritorious defenses regarding their ownership and/or responsibility for the premises, as well as issues regarding notice of the alleged defective condition (see Greene v. Mullen, 39 A.D.3d 469, 470, 833 N.Y.S.2d 215 [2d Dept. 2007] ). Furthermore, vacatur was warranted given this state's strong public policy for deciding cases on the merits (see U.S. Bank N.A. v. Richards, 155 A.D.3d 522, 523, 65 N.Y.S.3d 178 [1st Dept. 2017] ).

We have considered plaintiff's remaining arguments and find them unavailing.