Tuesday, April 9, 2013

Vacating a default.

Practice point:  In deciding a motion to vacate a default, the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. A general assertion that the default was occasioned by the defendant's insurance broker or liability carrier is insufficient. Here, the defendant's unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff's motion for leave to enter a default judgment.

Student note: The defendant's claim that he did not receive the plaintiff's motion for leave to enter a default judgment, the default order, and other papers related to this action because the address to which they were mailed did not contain his unit number was improperly raised for the first time on appeal and therefore was not properly before the Appellate Division.

Case: Spitzer v. Landau, NY Slip Op 02067 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:The inadmissibility of hearsay hospital notes.