Opinion
10977N 10977NA Index 653234/16
02-06-2020
KENSINGTON INSURANCE COMPANY, Plaintiff–Appellant, v. Paulino RAMALES, et al., Defendants, Rocio Garcia, Defendant–Respondent.
Ahmuty, Demers & McManus, New York (Frank J. Wenick of counsel), for appellant. Pasich LLP, New York (Jeffrey L. Schuman of counsel), for respondent.
Ahmuty, Demers & McManus, New York (Frank J. Wenick of counsel), for appellant.
Pasich LLP, New York (Jeffrey L. Schuman of counsel), for respondent.
Acosta, P.J., Richter, Kapnick, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Arhtur F. Engoron, J.), entered April 17, 2018, which granted defendant's motion to vacate her default, and order, same court and Justice, entered November 13, 2018, which granted reargument only to the extent of clarifying that defendant had two meritorious defenses, unanimously affirmed, without costs.
The motion court providently exercised its discretion in accepting defendant's excuse of law office failure where the excuse was reasonably detailed and credible ( B & H Fla. Notes LLC v. Ashkenazi, 172 A.D.3d 433, 434, 100 N.Y.S.3d 220 [1st Dept. 2019] ). As for a meritorious defense, the motion court properly determined that the insured's lack of cooperation had not been established as a matter of law to preclude defendant from asserting it as an improper basis for denial of coverage, as "[m]ere inaction by the insured is not a sufficient basis for a disclaimer" ( City of New York v. Continental Cas. Co., 27 A.D.3d 28, 32, 805 N.Y.S.2d 391 [1st Dept. 2005] ). On reargument, the motion court providently exercised its discretion in granting reargument to clarify that plaintiff also had not established conclusively that the insured did not reside at the premises, and without the policy before it, the issue of whether the insured lived at the premises was not dispositive of whether defendant had a defense to the action ( Dean v. Tower Ins. Co. of N.Y., 19 N.Y.3d 704, 708, 955 N.Y.S.2d 817, 979 N.E.2d 1143 [2012] ).