Opinion
2007-1155 K C.
Decided October 30, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 5, 2007. The order denied defendant's motion to vacate the default judgment entered against it.
Order affirmed without costs.
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ.
In order to vacate the default judgment entered in this action by a provider to recover assigned first-party no-fault benefits, defendant was required to establish both a reasonable excuse for the default in answering the complaint and a meritorious defense ( see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141). In his affirmation in support of the motion to vacate the default judgment, defense counsel acknowledged that defendant was personally served with the summons and complaint on or about August 31, 2005 but stated that his office did not receive a copy of the summons and complaint until on or about October 28, 2005. He attributed the delay to defendant's processing the large "volume of complaints received by defendant every month." Defendant was required, however, to submit an affidavit with "supporting facts in evidentiary form sufficient to justify the default" ( Incorporated Vil. of Hempstead v Jablonsky,
283 AD2d 553, 554) and include "a detailed explanation of [the] oversights" ( Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683). To the extent that defense counsel stated that the carrier delayed in forwarding the summons and complaint to his office, said conclusory allegations were not based upon personal knowledge, and thus had no probative value ( see Zuckerman v City of New York, 49 NY2d 557). Accordingly, having failed to establish a reasonable excuse for its delay in answering the complaint, defendant was not entitled to vacatur of the default judgment entered against it.
We further note that defendant did not move expeditiously to vacate the default judgment. Although defense counsel stated that his office received a copy of the summons and complaint in October of 2005, and also acknowledged that his office received notice of entry of the default judgment in December of 2005, the motion to vacate the default judgment was not made until October of 2006.
Defendant's remaining contentions lack merit. Accordingly, the order is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.