Allstate Ins. Co. v Balogun (2013 NY Slip Op 51273(U))

Allstate Ins. Co. v Balogun

2013 NY Slip Op 51273(U) [40 Misc 3d 135(A)]

Decided on July 31, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Allstate Insurance Company as Subrogee of ENRIQUE HILTON, Appellant, —

against

Fatai A. Balogun, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2012. The order granted defendant's motion to, in effect, vacate (1) a prior order of the same court (Barry A. Schwartz, J.), entered June 6, 2012, granting, on default, plaintiff's motion for summary judgment, and (2) the default judgment entered pursuant thereto.

ORDERED that the order entered July 3, 2012 is reversed, without costs, defendant's motion to, in effect, vacate the prior order granting, on default, plaintiff's motion for summary judgment, and the default judgment entered pursuant thereto, is denied, and the default judgment is reinstated.

In this subrogation action, plaintiff appeals from an order of the Civil Court which granted defendant's motion to, in effect, vacate a prior order of the same court granting, on default, plaintiff's motion for summary judgment, and the default judgment entered pursuant thereto.
In order to vacate the order granting, on default, plaintiff's motion for summary judgment [*2]and the judgment entered pursuant thereto, defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to plaintiff's motion (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Defendant's contention, in support of his motion, that he did not receive any papers from the court is belied by the fact that he had appeared on the original return date of plaintiff's motion for summary judgment. Defendant offered no excuse for his failure to appear on the adjourned return date of plaintiff's motion or for his failure to submit opposition papers on that date. As defendant failed to demonstrate an excusable default, it is unnecessary for us to consider whether he sufficiently demonstrated a potentially meritorious opposition to plaintiff's motion for summary judgment. Consequently, it was an improvident exercise of discretion for the Civil Court to grant defendant's motion.

Accordingly, the order is reversed, defendant's motion to, in effect, vacate the prior order granting, on default, plaintiff's motion for summary judgment, and the default judgment entered pursuant thereto, is denied, and the default judgment is reinstated.