Allstate Insurance v. Grodzki

Dec 26, 2013
Versions:112 A.D.3d 919
977 N.Y.S.2d 388

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated October 12, 2012, which granted the motion of Szczepan Grodzki, inter alia, pursuant to CPLR 5015 (a) (1) to vacate a judgment of the same court dated January 24, 2011, granting the petition upon his default in appearing at a framed-issue hearing.

Ordered that the order is affirmed, with one bill of costs.

To vacate his default, Szczepan Grodzki was required to demonstrate a reasonable excuse for failing to appear at a framed-issue hearing and a potentially meritorious defense to the petition (see CPLR 5015 [a] [1]; Matter of Royal Leisure v TLAM, Inc., 107 AD3d 721 [2013]; Matter of Government Empls. Ins. Co. v Dae-Hee Lee, 78 AD3d 944, 945 [2010]). Here, the Supreme Court providently exercised its discretion in determining that Grodzki‘s “law office failure” explanation for his nonappearance constituted a reasonable excuse (CPLR 2005; see Matter of Nahum v Mansour, 109 AD3d 548, 549 [2013]; Green Apple Mgt. Corp. v Aronis, 55 AD3d 669 [2008]). Furthermore, Grodzki demonstrated the existence of a potentially meritorious defense to the petition (see generally Matter of Metropolitan Prop. & Cas. Ins. Co. v Singh, 98 AD3d 580, 581 [2012]; Matter of American Intl. Ins. Co. v Giovanielli, 72 AD3d 948, 949 [2010]).

The petitioner‘s remaining contention is without merit.

Accordingly, the Supreme Court properly granted Grodzki‘s motion, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the judgment dated January 24, 2011, granting the petition upon his default in appearing at a framed-issue hearing.

Mastro, J.P., Rivera, Leventhal and Chambers, JJ., concur.

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Jolly, J.), dated July 19, 2012, which, after a hearing, in effect, denied the petition and dismissed the proceeding.

Ordered that the order is affirmed, without costs or disbursements.

“A family offense must be established by a fair preponderance of the evidence” (Matter of Saldivar v Cabrera, 109 AD3d 831, 831 [2013]; see Family Ct Act § 832; Matter of Bazante v Bazante, 107 AD3d 707, 707 [2013]). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court‘s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Saldivar v Cabrera, 109 AD3d at 832; see Matter of Winfield v Gammons, 105 AD3d 753, 754 [2013]). Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent committed the family offenses at issue. The Family Court‘s determination that the petitioner failed to establish that a family offense was committed against her was based on its credibility assessments, and is supported by the record (see Matter of Sepulveda v Perez, 90 AD3d 1057, 1058 [2011]; Matter of Richardson v Richardson, 80 AD3d 32, 44 [2010]). Accordingly, we decline to disturb the Family Court‘s determination.

Skelos, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.