Default not vacated: competent evidence not presentedAugust 4, 2019

Shy v Shavin Corp., 2019 NY Slip Op 06011 (2d Dept. 2019)

” Here, the Supreme Court determined that the defendant established a reasonable excuse for its default based upon its insurance carrier’s delay before defending the action. However, in support of its motion, the defendant failed to submit admissible evidence to demonstrate that it notified its insurance carrier of the existence of this action prior to its default. In support of its motion, the defendant submitted an affidavit from a litigation consultant employed by the insurance carrier. The litigation consultant’s assertion that the insurance agent/broker for the defendant attempted to forward a copy of the summons and complaint to the insurance carrier in October 2017 was based upon inadmissible hearsay (see Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738, 739). Thus, the defendant failed to demonstrate that its default was attributable to insurance carrier delay (see generally Gershman v Ahmad, 131 AD3d 1104, 1106). In addition, the evidence demonstrating that, following the order granting the plaintiff’s motion for leave to enter a default judgment, the insurance carrier delayed in assigning counsel to move on the defendant’s behalf to vacate the default, does not establish a reasonable excuse for the default.”