From Casetext: Smarter Legal Research

Pires v. Ortiz

Appellate Division of the Supreme Court of New York, First Department
May 10, 2005
18 A.D.3d 263 (N.Y. App. Div. 2005)

Summary

holding that a delay in moving to vacate a default judgment of over a year, from the time the defendants' insurance carrier had disclaimed coverage and a default judgment was entered, showed "persistent and willful inaction"

Summary of this case from Burke v. Mulberry St. Bar, LLC

Opinion

6067N.

May 10, 2005.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered March 30, 2004, which denied defendants' motion to vacate a default judgment, unanimously affirmed, without costs.

Before: Tom, J.P., Saxe, Friedman and Marlow, JJ., concur.


The motion court properly rejected defendants' claim that they reasonably believed that at all relevant times the action, commenced in June 2000, was being defended by their insurance carrier. It appears that several weeks after defendants mailed the summons and complaint to the carrier as instructed by their insurance broker, the documents were returned to them in the same envelope in which they were sent, albeit stamped "Received." Thereafter, in October 2000, defendants were served with a motion for a default judgment; in January 2001, they received a letter from their carrier advising them of their default and disclaiming coverage for failure to promptly provide the carrier with a copy of the summons and complaint; and in March 2001, they were served with notice of entry of an order granting a default judgment and directing an inquest. By this time, any belief that the carrier was defending the action was no longer tenable. Thereafter, defendants received notice that the carrier was in liquidation, notice of an inquest to be held in February 2002, and notice of entry of judgment in September 2002, but they did not make their motion to vacate the default until November 2003. Given this persistent and willful inaction, defendants' default should not be vacated even if they have a meritorious defense ( see Kent v. Fearless Realty, 174 AD2d 499; Time Warner City Cable v. Tri State Auto, 5 AD3d 153, lv dismissed 3 NY3d 656). We also reject defendants' argument that the inquest was invalid since it was conducted while the liquidation stay against their carrier was in effect. The stay against all proceedings involving defendants' carrier took effect in May 2001, after the carrier had disclaimed coverage in this action in January 2001. Thus, at the time of the inquest, the stay was inapplicable to this action.


Summaries of

Pires v. Ortiz

Appellate Division of the Supreme Court of New York, First Department
May 10, 2005
18 A.D.3d 263 (N.Y. App. Div. 2005)

holding that a delay in moving to vacate a default judgment of over a year, from the time the defendants' insurance carrier had disclaimed coverage and a default judgment was entered, showed "persistent and willful inaction"

Summary of this case from Burke v. Mulberry St. Bar, LLC
Case details for

Pires v. Ortiz

Case Details

Full title:SHERRIL PIRES et al., Respondents, v. ALEXIS ORTIZ et al., Appellants

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 10, 2005

Citations

18 A.D.3d 263 (N.Y. App. Div. 2005)
795 N.Y.S.2d 9

Citing Cases

Youni Gems Corp. v. Bassco Creations Inc.

Moreover, defendants made no attempt to vacate their default until almost a year later when plaintiff's…

Liu v. Chang

Because defendant has failed to demonstrate a reasonable excuse for her default, we need not determine…