Spitzer v. Landau

• Decision Date: 27 March 2013
• Citation: 2013 N.Y. Slip Op. 02067,961 N.Y.S.2d 554,104 A.D.3d 936
• Parties: Joel SPITZER, appellant, v. Moses LANDAU, respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 936

961 N.Y.S.2d 554

2013 N.Y. Slip Op. 02067

Joel SPITZER, appellant,

v.Moses LANDAU, respondent.

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

March 27, 2013.

Subin Associates, LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellant.

Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), for respondent.

PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated April 25, 2012, as granted that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate an order of the same court dated August 1, 2011, granting the plaintiff's unopposed motion for leave to enter judgment on the issue of liability against the defendant upon his default in appearing or answering, and for leave to serve a late answer.

ORDERED that the order dated April 25, 2012, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the defendant's motion which was to vacate the order dated August 1, 2011, and for leave to serve a late answer, is denied.

Initially, we note that, contrary to the plaintiff's contention, the defendant's affidavit submitted in support of his motion, inter alia, to vacate a previous order issued upon his default was in admissible form and properly considered by the Supreme Court ( see Furtow v. Jenstro Enters., Inc., 75 A.D.3d 494, 903 N.Y.S.2d 754).

While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general assertion that the default was occasioned by the defendant's insurance broker or liability carrier is insufficient ( see Trepel v. Greenman–Pedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227;Jackson v. Professional Transp. Corp., 81 A.D.3d 602, 603, 916 N.Y.S.2d 159;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). Here, the defendant's unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff's motion for leave to enter a default judgment ( see Trepel v. Greenman–Pedersen, Inc., 99 A.D.3d at 791, 952 N.Y.S.2d 227;Alterbaum v. Shubert Org., Inc., 80 A.D.3d 635, 636, 914 N.Y.S.2d 681;Epps v. LaSalle Bus, 271 A.D.2d 400, 705 N.Y.S.2d 388). The defendant's claim that he did not receive the plaintiff's motion for leave to enter a default judgment, the default order, and other papers related to this action because the address to which they were mailed did not contain his unit number ( see Gray–Joseph v. Shuhai Liu, 90 A.D.3d 988, 990, 934 N.Y.S.2d 868) is improperly raised for the first time on appeal and therefore is not properly before this Court ( see Hsu v. Carlyle Towers Coop. “B,” Inc., 102 A.D.3d 835, 960 N.Y.S.2d 433;Weill v. East Sunset Park Realty, LLC, 101 A.D.3d 857, 957...