Aetna Life Ins. Co. v. UTA of KJ Inc.

203 A.D.3d 401

160 N.Y.S.3d 590 (Mem)

AETNA LIFE INSURANCE COMPANY, Plaintiff–Respondent,

v.UTA OF KJ INC., also known as United Talmudical Academy of Kiryas Joel, Defendant–Appellant.

15397

Index No. 151940/18

Case No. 2021–01294

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

ENTERED March 1, 2022

Avrom R. Vann, P.C., New York (Avrom R. Vann of counsel), for appellant.

Heitner & Breitstein P.C., Brooklyn (Yelena C. Tsyrlin of counsel), for respondent.

Gische, J.P., Oing, Kennedy, Mendez, Shulman, JJ.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 12, 2021, which denied defendant's motion to vacate an order, entered on default or about February 26, 2021, granting plaintiff's motion for summary judgment, unanimously affirmed, without costs.

Contrary to defendant's contentions, it did default in responding to plaintiff's motion for summary judgment. Defendant's counsel acknowledges that he received notification of plaintiff's motion, yet the record shows that defendant failed to submit any opposition. Although counsel maintains that he telephoned the court on the motion's return date in an effort to adjourn the motion, he never sought an adjournment in a manner consistent with the court's rules, which required adjournments to be sought in writing (see Benson Park Assoc., LLC v. Herman, 73 A.D.3d 464, 465, 899 N.Y.S.2d 614 [1st Dept. 2010] ).

As to vacating the default, a party seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense ( CPLR 5015[a][1] ; see Leader v. Parkside Group, 174 A.D.3d 420, 421, 103 N.Y.S.3d 427 [1st Dept. 2019], lv dismissed, 33 N.Y.3d 1111, 106 N.Y.S.3d 703, 130 N.E.3d 1313 [2019] ). However, defendant has failed to proffer a reasonable excuse for the default. Although defendant's counsel was in the process of moving his office to a new location on the return date, defendant fails to give any reason that counsel could not have responded to the motion before the moving process began. Counsel took no action for approximately three weeks after receiving notice of the motion. Further, this default was not an isolated incident on defendant's part (see Mega Contr., Inc. v. Adventure Masonry Corp., 188 A.D.3d 664, 665, 134 N.Y.S.3d 395 [2d Dept. 2020] ).

As defendant failed to provide a justifiable excuse, we need not consider whether it established a potentially meritorious defense ( CPLR 5015[a][1] ; see New Globaltex Co.,...