Trepel v. Greenman- Pedersen, Inc.

• Citation: 2012 NY Slip Op 06798
• Decision Date: 10 October 2012
• Docket Number: Index No. 10303/99,2011-09654
• Parties: Mindy J. Trepel, etc., appellant, v. Greenman- Pedersen, Inc., et al., defendants, Promo-Pro, Ltd., respondent.
• Court: New York Supreme Court — Appellate Division

2012 NY Slip Op 06798

Mindy J. Trepel, etc., appellant,
v.
Greenman- Pedersen, Inc., et al., defendants, Promo-Pro, Ltd., respondent.

2011-09654
Index No. 10303/99

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on October 10, 2012

DANIEL D. ANGIOLILLO, J.P.
ANITA R. FLORIO
ARIEL E. BELEN
SHERI S. ROMAN, JJ.

Sonin & Genis (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated August 17, 2010, which granted the motion of the defendant Promo-Pro, Ltd., in effect, pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court dated April 1, 2008, entered against that defendant upon its default in appearing or answering.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the motion of the defendant Promo-Pro, Ltd., in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment dated April 1, 2008, entered against it upon its default in appearing or answering, is denied.

In April 1999, the plaintiff commenced this action against several defendants, including Promo-Pro, Ltd. (hereinafter Promo-Pro), and served Promo-Pro by delivery of the summons and complaint to the Secretary of State as its agent for service, pursuant to Business Corporation Law § 306. Promo-Pro forwarded the summons and complaint to its insurer, Credit General Insurance Company (hereinafter Credit General). Promo-Pro, on its own or by its insurer, failed to answer the complaint. More than 10 months later, in February 2000, the plaintiff served Promo-Pro with a motion for leave to enter a default judgment against it. Promo-Pro forwarded the motion papers to Credit General but took no further action to determine if Credit General would provide counsel to oppose the motion. Promo-Pro did not appear or interpose opposition, and on May 8, 2000, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment, permitting the plaintiff to proceed to inquest. Prior to the inquest, in November 2001,...