2 consecutive error disallow default vacaturJune 10, 2017


Here, defendant proffered an affidavit by its [*2]claims examiner, who merely stated that he was supposed to forward the summons and complaint to defense counsel, but did not, and “it was a mistake.” The claims examiner explained defendant’s default in opposing plaintiff’s motion for leave to enter a default judgment by stating that plaintiff’s motion had not been scanned into defendant’s file system until the date the motion was returnable, and that it was forwarded to defense counsel the following day. Under the circumstances presented, we find that defendant failed to establish a reasonable excuse for its default

Here, there were two errors that claims made: (1) The failure to forward the summons and complaint; (2) the failure to forward the default application, on notice.  This was not intentional clearly, and fits within the gambit of claims office failure.  Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876 (App. Term 2d Dept. 2005)

Yet, under the two strike rule here, these actions on the part of the carrier were fatal.  Sadly, this Court and its cousin on Monroe Place pay “lip service” to the pubic policy of cases being heard on their merits.  Oh, do I think the courts squeeze insurance carriers harder than civilians who are sued and default?  Well you can answer that question.  I feel like these decisions read more like Justice Stephen Crane’s dissent in Harcztark than the unsigned majority opinion in that case.

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