Kachar v. Berlin

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated January 4, 2002, which granted the defendants’ motion to vacate their default in appearing and answering. Ordered that the order is reversed, on the law, with costs, and the motion is denied. CPLR 5015 (a) (1) provides that a court may relieve a party from a judgment or order on the ground of excusable default if such a motion is made within one year after service of the judgment or order with written notice of entry. Here, it is undisputed that the defendants waited more than a year before they moved to vacate their default. In addition, it is well established that a party seeking to vacate a default in answering must make a showing of a justifiable excuse for the default and a meritorious defense. The defendants’ excuse of delay caused by their insurance carrier was insufficient to establish a justifiable excuse (see Hazen v Bottiglieri, 286 AD2d 708; see also Peters v Pickard, 143 AD2d 81). Ritter, J.P., Florio, Goldstein, Luciano and Cozier, JJ., concur.