Appellate Division of the Supreme Court of New York, 2006

Lemberger v. Congregation Yetev Lev D'Satmar, Inc.

Appellate Division of the Supreme Court of New York · Decided October 10, 2006

33 A.D.3d 671; 822 N.Y.S.2d 597

Cases that cite this one

27 later published cases cite this decision. The 25 that cite it most often are listed here.

Trepel v. Greenman-Pedersen, Inc. (Appellate Division of the Supreme Court of New York 2012)
Trepel v. Greenman-Pedersen, Inc. (Appellate Division of the Supreme Court of New York 2012)
Spitzer v. Landau (Appellate Division of the Supreme Court of New York 2013)
Spitzer v. Landau (Appellate Division of the Supreme Court of New York 2013)
Kramer v. Oil Services, Inc. (Appellate Division of the Supreme Court of New York 2009)
Ahmed v. Essex Terrace, Inc. (Appellate Division of the Supreme Court of New York 2022)
Sargsyan v. Kaieteur Constr., Inc. (Appellate Division of the Supreme Court of New York 2019)
Zovko v. Quittner Realty, LLC (Appellate Division of the Supreme Court of New York 2018)
Gage v. Village of Catskill (Appellate Division of the Supreme Court of New York 2016)
Gershman v. Ahmad (Appellate Division of the Supreme Court of New York 2015)
Jackson v. Professional Transportation Corp. (Appellate Division of the Supreme Court of New York 2011)
Gartner v. Unified Windows, Doors & Siding, Inc. (Appellate Division of the Supreme Court of New York 2010)
Shapouri v. Molinelli (Appellate Division of the Supreme Court of New York 2010)
Sanchez v. Avuben Realty LLC (Appellate Division of the Supreme Court of New York 2010)
Allstate Insurance v. City of White Plains (Appellate Division of the Supreme Court of New York 2010)
Walley v. Leatherstocking Healthcare, LLC (Appellate Division of the Supreme Court of New York 2010)
Toland v. Young (Appellate Division of the Supreme Court of New York 2009)
Leifer v. Pilgreen Corp. (Appellate Division of the Supreme Court of New York 2009)
GMAC Mortgage Corp. v. Druchinina (Appellate Division of the Supreme Court of New York 2009)
Swedish v. Beizer (Appellate Division of the Supreme Court of New York 2008)
Martinez v. D'Alessandro Custom Builders & Demolition, Inc. (Appellate Division of the Supreme Court of New York 2008)
Ayiku v. Viteritti (Appellate Division of the Supreme Court of New York 2008)
Mele v. Okubo (Appellate Division of the Supreme Court of New York 2007)
Canty v. Gregory (Appellate Division of the Supreme Court of New York 2007)
Deutsche Bank National Trust Co. v. Ajim (Appellate Division of the Supreme Court of New York 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated February 17, 2006, which granted the motion of the defendants Congregation Yetev Lev D’Satmar, Inc., and United Talmudical Academy Torah V’Yirah Rabbinical, Inc., inter alia, to vacate a judgment of the same court (Rosenberg, J.) entered December 9, 2005, upon their default in appearing or answering the complaint.

Ordered the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

On or about August 11, 2005 the plaintiff commenced this action against the defendants Congregation Yetev Lev D’Satmar, Inc. (hereinafter Congregation), United Talmudical Academy Torah V’Yirah Rabbinical, Inc. (hereinafter United), and Tirnower Kosher Catering, Inc. The plaintiff moved for leave to enter a default judgment against these defendants and on December 9, 2005 a judgment was entered against them upon their default in appearing or answering the complaint. In February 2006 Congregation and United (hereinafter the respondents) moved to vacate the default against them and to direct the plaintiff to accept their late answer. The Supreme Court granted the motion. The plaintiff appeals.

A defendant seeking to vacate its default in appearing or answering the complaint must provide a reasonable excuse for *672the default and demonstrate a meritorious defense to the action (see CPLR 5015 [a] [1]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Weinberger v Judlau Contr., 2 AD3d 631 [2003]; Kaplinsky v Mazor, 307 AD2d 916 [2003]; Ennis v Lema, 305 AD2d 632 [2003]; O’Shea v Bittrolff, 302 AD2d 439 [2003]). While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), a general excuse that the default was caused by delays occasioned by the defendants’ insurance carrier is insufficient (see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]; Campbell v Ghafoor, 8 AD3d 316, 317 [2004]; Weinberger v Judlau Contr., supra; Franklin v Williams, 2 AD3d 400 [2003]; Kaplinsky v Mazor, supra; Hazen v Bottiglieri, 286 AD2d 708 [2001]; Miles v Blue Label Trucking, 232 AD2d 382, 383 [1996]; Martyn v Jones, 166 AD2d 508 [1990]; Peters v Pickard, 143 AD2d 81 [1988]).

Contrary to the respondents’ contention, the bare allegations of United’s administrator and the claims manager of Zurich Insurance Company (hereinafter Zurich), the respondents’ insurance carrier, that the summons and complaint were immediately forwarded to an unnamed insurance broker, without an adequate explanation for the approximately four-month gap that followed before Zurich allegedly received them, was insufficient to constitute a reasonable excuse for their default. The explanation proffered by Zurich’s claims manager that “because Zurich had no record of [the claim] being logged into our system, Zurich never assigned counsel to answer the complaint” did not constitute a reasonable excuse (see CPLR 5015 [a] [1]; Gray v B. R. Trucking Co., supra; Weinberger v Judlau Contr., supra; Kaplinsky v Mazor, supra; Ennis v Lema, supra; O’Shea v Bittrolff, supra). In addition, the unsubstantiated affidavit of Congregation’s administrator, denying that Congregation had an office where the summons and complaint were served, was insufficient to rebut the presumption of proper service created by the affidavit of service and other documentary proof provided by the appellant (see Carrenard v Mass, 11 AD3d 501 [2004]; Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]; De La Barrera v Handler, 290 AD2d 476 [2002]).

In view of the lack of a reasonable excuse, it is unnecessary to consider whether the respondents sufficiently demonstrated a meritorious defense. Accordingly, the Supreme Court improvidently exercised its discretion in granting the respondents’ motion to vacate the default judgment.

The respondents’ remaining contentions are without merit. Schmidt, J.P, Santucci, Skelos and Covello, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.