Maya Assurance Co. v. Long Sheng Zheng

170 N.Y.S.3d 480 (Mem)

In the Matter of MAYA ASSURANCE COMPANY, respondent,

v.Long Sheng ZHENG, appellant.

2019–12052

Index No. 705581/15

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

Argued—April 7, 2022

July 20, 2022

Napoli Shkolnik PLLC, Melville, NY (Nicholas R. Farnolo of counsel), for appellant.

The Noll Law Firm, P.C., Syosset, NY (Richard E. Noll of counsel), for respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to stay arbitration of a claim for uninsured motorist benefits, Long Sheng Zheng appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered September 24, 2019. The order denied the motion of Long Sheng Zheng pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court (Thomas D. Raffaele, J.) entered January 19, 2016, granting the petition upon his failure to appear or answer the petition.

ORDERED that the order is affirmed, with costs.

On July 14, 2012, Long Sheng Zheng (hereinafter the appellant), a taxi driver, was in his taxi when his vehicle allegedly was struck by another vehicle. In May 2015, the appellant filed a demand for arbitration against his insurer, the petitioner, of his claim for benefits under the uninsured motorist endorsement of the policy issued to him by the petitioner. The petitioner then filed a petition to stay the arbitration. The appellant failed to appear or answer the petition. In a judgment entered January 19, 2016, the Supreme Court granted the petition.

In July 2019, the appellant moved pursuant to CPLR 5015(a)(1) to vacate the judgment entered January 19, 2016, upon his failure to appear or answer the petition. In an order entered September 24, 2019, the Supreme Court denied the motion.

To obtain relief from his default pursuant to CPLR 5015(a)(1), the appellant was required to show both a reasonable excuse for the default and a potentially meritorious defense to the petition (see Matter of Liberty Mut. Ins. Co. v. Fiduciary Ins. Co. of Am., 111 A.D.3d 731, 732, 974 N.Y.S.2d 560 ). A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Ackerman v. Berkowitz, 175 A.D.3d 641, 641, 105 N.Y.S.3d 703 ). "While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse" ( Ogunmoyin v. 1515 Broadway Fee Owner, LLC, 85 A.D.3d 991, 992, 925 N.Y.S.2d 844 ).

Here, the Supreme Court providently exercised its discretion in finding that the appellant did not establish a reasonable excuse for the default (see Bank of Am., N.A. v. Murjani, 199 A.D.3d 630, 631, 153 N.Y.S.3d 887 ; Matthews v. Vivero, 189 A.D.3d 1389, 134 N.Y.S.3d 780 ; Pawoor Kim v. Xin Chen, 189 A.D.3d 1061, 1062, 133 N.Y.S.3d 853 ; Chowdhury v. Weldon, 185 A.D.3d 649, 124 N.Y.S.3d 863 ). The appellant's counsel's affirmation in support of the motion to vacate the default contained conclusory allegations of law office failure based upon an attorney leaving the firm (see Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ). Further, the appellant did not provide a reasonable excuse for the more than three-year delay in moving to vacate his default (see Pawoor Kim v. Xin Chen, 189 A.D.3d at 1062, 133 N.Y.S.3d 853 ; Chowdhury v. Weldon, 185 A.D.3d 649, 124...