Trepel v. Greenman–Pedersen, Inc.

Decision Date10 October 2012
Citation99 A.D.3d 789,2012 N.Y. Slip Op. 06798,952 N.Y.S.2d 227
PartiesMindy J. TREPEL, etc., appellant, v. GREENMAN–PEDERSEN, INC., et al., defendants, Promo–Pro, Ltd., respondent.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

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

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

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, pursuantto 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, Promo–Pro received notice that, in January 2001, a court in Ohio had declared Credit General insolvent. Promo–Pro did not appear at the inquest, and on April 1, 2008, the Supreme Court entered judgment against it. An affidavit of mail service established that, on April 1, 2008, the plaintiff served the judgment on Promo–Pro.

In March 2010, after the plaintiff garnished Promo–Pro's bank account, Promo–Pro moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment on the ground of excusable default. In support of the motion, Promo–Pro asserted that it had believed Credit General was defending the action because Promo–Pro had sent to Credit General the complaint and the motion for leave to enter a default judgment. Promo–Pro assumed that the action had been resolved when it heard nothing further about it for 10 years until January 2010, when the bank sent notice of the restraint on Promo–Pro's account. The Supreme Court granted Promo–Pro's motion, determining, inter alia, that Promo–Pro demonstrated a reasonable excuse for not appearing on the motion which resulted in the order dated May 8, 2000. We reverse.

Promo–Pro failed to establish its entitlement to relief from the judgment pursuant to CPLR 5015(a)(1). In support of its motion pursuant to CPLR 5015(a)(1), Promo–Pro was required to demonstrate a reasonable excuse for its default in appearing or answering the complaint and a potentially meritorious defense to the action ( seeCPLR 5015[a][1]; Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270;Alterbaum v. Shubert Org., Inc., 80 A.D.3d 635, 914 N.Y.S.2d 681;Lemberger v. Congregation Yetev Lev D'Satmar, Inc., 33 A.D.3d 671, 822 N.Y.S.2d 597). “While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general excuse that the default was caused by delays occasioned by the defendants' insurance carrier is insufficient” ( Lemberger v. Congregation Yetev Lev...

To continue reading

Request your trial
20 cases
  • Gecaj v. Gjonaj Realty & Mgmt. Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • April 25, 2017
    ... ... Drive Variety, Inc., 21 A.D.3d 876, 876877, 800 N.Y.S.2d 613 [2d Dept.2005] ). We respectfully do not believe that ... insurer has, in fact, not answered the complaint since the commencement of the action ( Trepel v. GreenmanPedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227 [2d Dept.2012] ; see also ... ...
  • Glanz v. Parkway Kosher Caterers, 2018-06282
    • United States
    • New York Supreme Court — Appellate Division
    • October 2, 2019
    ... ... On April 14, 2017, the defendant Parkway Glatt Kosher Caterers, Inc., was served with the supplemental summons and amended complaint by service upon the Secretary of ... BJ's Wholesale Club, Inc., 123 A.D.3d 1073, 1074, 997 N.Y.S.2d 635 ; Trepel v. GreenmanPedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227 ; Jackson v. Professional Transp ... ...
  • Fried v. Jacob Holding, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • August 7, 2013
    ... ... Trepel v. GreenmanPedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227). When the defendant was served with the plaintiffs' motion for leave to enter a ... ...
  • Wells Fargo Bank, N.A. v. Krauss
    • United States
    • New York Supreme Court — Appellate Division
    • May 13, 2015
    ... ... Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 753, 941 ... its discretion in denying the plaintiff's motion and granting BAC's cross motion (see Trepel v. GreenmanPedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227 ; Tribeca Lending Corp. v. Correa, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT