Garkusha v. Mutual of Omaha Insurance

Mar 1, 1999
Versions:259 A.D.2d 466
684 N.Y.S.2d 882
1999 N.Y. App. Div. LEXIS 2018

In an action, inter alia, to recover on an insurance policy, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated December 8, 1997, which denied his motion to vacate an order arid judgment (one paper) of the same court, dated August 15, 1996, granting the defendant’s motion for summary judgment dismissing the complaint and for judgment on its counterclaim upon the plaintiffs default in responding to the motion, awarding the defendant the principal sum of $10,000.56 on its counterclaim against him.

Ordered that the order is affirmed, with costs.

On his motion pursuant to CPLR 5015 (a) to vacate his default in responding to the defendant’s motion for summary judgment, the plaintiff was required to demonstrate a reasonable excuse for his default and a meritorious (1) cause of action, and (2) defense to the counterclaim (see, Medric Constr. v J.W. Mays, Inc., 230 AD2d 832; Peterson v Scandurra Trucking Co., 226 AD2d 691). As he failed to satisfy these requirements, the Supreme Court properly denied his motion. O’Brien, J. P., Ritter, Joy and Altman, JJ., concur.