Tadco Const. Corp. v. Allstate Ins. Co.

• Decision Date: 18 May 2010
• Citation: 73 A.D.3d 1022,900 N.Y.S.2d 687
• Parties: TADCO CONSTRUCTION CORP., appellant-respondent, v. ALLSTATE INSURANCE CO., respondent-appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 687

73 A.D.3d 1022

TADCO CONSTRUCTION CORP., appellant-respondent,

v.ALLSTATE INSURANCE CO., respondent-appellant.

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

May 18, 2010.

Annette G. Hasapidis, South Salem, N.Y., for appellant-respondent.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for respondent-appellant.

In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiff appeals from so much of anorder of the Supreme Court, Queens County (Agate, J.), dated July 15, 2009, as denied its motion for leave to enter a default judgment upon the defendant's failure to answer or appear and granted the defendant's cross motion to vacate its default in answering the complaint, and the defendant cross-appeals from so much of the same order as, after a hearing to determine the validity of service of process, determined that it had been properly served with process.

ORDERED that the cross appeal is dismissed, as the defendant is not aggrieved by the order cross-appealed from ( see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the defendant's cross motion to vacate its default in answering the complaint is denied, the plaintiff's motion for leave to enter a default judgment is granted, and the matter is remitted to the Supreme Court, Queens County, for an inquest on the issue of damages.

The plaintiff moved for leave to enter a default judgment upon the defendant's failure to answer or appear and the defendant thereafter cross-moved to vacate its default on theground that it had not been properly served with the Summons with Notice. Although the Supreme Court determined, after a hearing, that the defendant had been properly served pursuant to CPLR 308(2), it vacated the defendant's default and granted the defendant leave to serve an answer.

On appeal, the plaintiff contends that the Supreme Court erred in vacating the defendant's default. In addition, the defendant seeks to challenge by way of cross-appeal the Supreme Court's determination that it was properly served with process. Although the defendant's cross-appeal must be dismissed on the ground that it is not aggrieved by the order vacating its default, the contentions raised by the defendant can be considered as alternative grounds for affirmance ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241; Matter of Allstate Ins. Co. v. Leach, 15 A.D.3d 649, 789 N.Y.S.2d 910).

In seeking to vacate its default, the defendant was required to demonstrate a reasonable excuse for the default and a potentially meritorious defense ( see Sime v. Ludhar, 37 A.D.3d 817, 830 N.Y.S.2d 775; Professional Bookkeeper, Inc. v. L & L N.Y. Food Corp., 18 A.D.3d 851, 795 N.Y.S.2d 473; Fekete v. Camp Skwere, 16...