Lemberger v. Congregation Yetev Lev D'Satmar, Inc., 33 A.D.3d 671 (N.Y. App. Div. 2006). · Go Syfert
Lemberger v. Congregation Yetev Lev D'Satmar, Inc., 33 A.D.3d 671 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
34 citation events (34 in the last 25 years) across 1 distinct court.
Strongest positive: Gage v. Village of Catskill (nyappdiv, 2016-11-17)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) Gage v. Village of Catskill
N.Y. App. Div. · 2016 · confidence medium
Contrary to plaintiff’s claim, this is not a case in which the excuse offered for the default is the insurer’s delay in responding or interposing a defense on behalf of its insured (see Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Krieger v Cohan, 18 AD3d at 824 ; Cilindrello v Rayabin, 297 AD2d 699, 699 [2002]).
cited Cited as authority (rule) Gershman v. Ahmad
N.Y. App. Div. · 2015 · confidence medium
Corp., 35 AD3d 790 [2006]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Gainey v Anorzej, 25 AD3d 650, 651 [2006]).
cited Cited as authority (rule) Spitzer v. Landau
N.Y. App. Div. · 2013 · confidence medium
Corp., 81 AD3d 602, 603 [2011]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]).
cited Cited as authority (rule) Spitzer v. Landau
N.Y. App. Div. · 2013 · confidence medium
Corp., 81 AD3d 602, 603 [2011]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]).
discussed Cited as authority (rule) Trepel v. Greenman-Pedersen, Inc.
N.Y. App. Div. · 2012 · confidence medium
“While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general excuse that the default was caused by delays occasioned by the defendants’ insurance carrier is insufficient” (Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d at 672 [citation omitted]; see Jackson v Professional Transp.
discussed Cited as authority (rule) Trepel v. Greenman-Pedersen, Inc.
N.Y. App. Div. · 2012 · confidence medium
“While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general excuse that the default was caused by delays occasioned by the defendants’ insurance carrier is insufficient” (Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d at 672 [citation omitted]; see Jackson v Professional Transp.
discussed Cited as authority (rule) Jackson v. Professional Transportation Corp.
N.Y. App. Div. · 2011 · confidence medium
Additionally, the defendant failed to demonstrate a reasonable excuse under CPLR 5015 (a) (1) for its pattern of willful default and neglect (see Campbell-Jarvis v Alves, 68 AD3d 701, 702 [2009]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]; Merwitz v Dental Care Servs., 155 AD2d 748, 750 [1989]), and its unsubstantiated claims that the default was occasioned by the conduct of its insurance broker or its liability carrier are unavailing (see Gartner v Unified Windows, Siding & Doors, Inc., 71 AD3d at 632 ; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Maje…
discussed Cited as authority (rule) Walley v. Leatherstocking Healthcare, LLC
N.Y. App. Div. · 2010 · confidence medium
Inasmuch as defendant based its cross motion on an unsupported claim of insurance carrier delay, we conclude that defendant did not establish a reasonable excuse for an untimely answer (see Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Martinez v D’Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787 [2008]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]).
discussed Cited as authority (rule) Sanchez v. Avuben Realty LLC
N.Y. App. Div. · 2010 · confidence medium
Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]).
discussed Cited as authority (rule) Allstate Insurance v. City of White Plains
N.Y. App. Div. · 2010 · confidence medium
The vague and unsubstantiated excuse for the default proffered by the appellant’s attorney that the petition was not forwarded to him in a timely manner was insufficient (see Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Juseinoski v Board ofEduc. of City ofN.Y, 15 AD3d 353 [2005]; Campbell v Ghafoor, 8 AD3d 316, 317 [2004]).
discussed Cited as authority (rule) Shapouri v. Molinelli
N.Y. App. Div. · 2010 · confidence medium
A defendant seeking to vacate its default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Kramer v Oil Servs., Inc., 65 AD3d 523 [2009]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Krieger v Cohan, 18 AD3d 823 [2005]).
cited Cited as authority (rule) Gartner v. Unified Windows, Doors & Siding, Inc.
N.Y. App. Div. · 2010 · confidence medium
Corp., 43 AD3d at 1144 ; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]).
discussed Cited as authority (rule) Kramer v. Oil Services, Inc.
N.Y. App. Div. · 2009 · confidence medium
A defendant seeking to vacate its default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate the existence of a meritorious defense to the action (see CPLR 5015 [a] [1]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Krieger v Cohan, 18 AD3d 823 [2005]; Kaplinsky v Mazor, 307 AD2d 916 [2003]).
cited Cited as authority (rule) Leifer v. Pilgreen Corp.
N.Y. App. Div. · 2009 · confidence medium
Corp., 43 AD3d 1143 [2007]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]).
discussed Cited as authority (rule) Toland v. Young
N.Y. App. Div. · 2009 · confidence medium
The defendants’ excuse that their insurance carrier failed to provide a defense was insufficient to excuse their default in serving a timely answer (see Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Krieger v Cohan, 18 AD3d 823, 824 [2005]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356 [2005]).
discussed Cited as authority (rule) Martinez v. D'Alessandro Custom Builders & Demolition, Inc.
N.Y. App. Div. · 2008 · confidence medium
While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), a general excuse that the default was caused by delays occasioned by the defendant’s insurance carrier is insufficient (see Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]; Campbell v Ghafoor, 8 AD3d 316, 317 [2004]; Weinberger v Judlau Contr., 2 AD3d 631 [2003]; Franklin v Williams, 2 AD3d 400 [2003]).
discussed Cited as authority (rule) Deutsche Bank National Trust Co. v. Ajim
N.Y. App. Div. · 2007 · confidence medium
The Supreme Court providently exercised its discretion in denying the defendant’s motion because she failed to present a reasonable excuse for her default in answering or appearing (see Sime v Ludhar, 37 AD3d 817 [2007]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 671-672 [2006]; NYCTL 1998-2 Trust v Avila, 29 AD3d 965 [2006]; Bank of N.Y. v Lagakos, 27 AD3d 678, 679 [2006]; NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d 1013, 1014 [2005]).
Retrieving the full opinion text from the archive…
Esther Lemberger
v.
Congregation Yetev Lev D'Satmar, Inc.
Appellate Division of the Supreme Court of the State of New York.
Oct 10, 2006.
33 A.D.3d 671
Cited by 27 opinions  |  Published

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated February 17, 2006, which granted the motion of the defendants Congregation Yetev Lev D’Satmar, Inc., and United Talmudical Academy Torah V’Yirah Rabbinical, Inc., inter alia, to vacate a judgment of the same court (Rosenberg, J.) entered December 9, 2005, upon their default in appearing or answering the complaint.

Ordered the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

On or about August 11, 2005 the plaintiff commenced this action against the defendants Congregation Yetev Lev D’Satmar, Inc. (hereinafter Congregation), United Talmudical Academy Torah V’Yirah Rabbinical, Inc. (hereinafter United), and Tirnower Kosher Catering, Inc. The plaintiff moved for leave to enter a default judgment against these defendants and on December 9, 2005 a judgment was entered against them upon their default in appearing or answering the complaint. In February 2006 Congregation and United (hereinafter the respondents) moved to vacate the default against them and to direct the plaintiff to accept their late answer. The Supreme Court granted the motion. The plaintiff appeals.

A defendant seeking to vacate its default in appearing or answering the complaint must provide a reasonable excuse for[*672] the default and demonstrate a meritorious defense to the action (see CPLR 5015 [a] [1]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Weinberger v Judlau Contr., 2 AD3d 631 [2003]; Kaplinsky v Mazor, 307 AD2d 916 [2003]; Ennis v Lema, 305 AD2d 632 [2003]; O’Shea v Bittrolff, 302 AD2d 439 [2003]). While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), a general excuse that the default was caused by delays occasioned by the defendants’ insurance carrier is insufficient (see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]; Campbell v Ghafoor, 8 AD3d 316, 317 [2004]; Weinberger v Judlau Contr., supra; Franklin v Williams, 2 AD3d 400 [2003]; Kaplinsky v Mazor, supra; Hazen v Bottiglieri, 286 AD2d 708 [2001]; Miles v Blue Label Trucking, 232 AD2d 382, 383 [1996]; Martyn v Jones, 166 AD2d 508 [1990]; Peters v Pickard, 143 AD2d 81 [1988]).

Contrary to the respondents’ contention, the bare allegations of United’s administrator and the claims manager of Zurich Insurance Company (hereinafter Zurich), the respondents’ insurance carrier, that the summons and complaint were immediately forwarded to an unnamed insurance broker, without an adequate explanation for the approximately four-month gap that followed before Zurich allegedly received them, was insufficient to constitute a reasonable excuse for their default. The explanation proffered by Zurich’s claims manager that “because Zurich had no record of [the claim] being logged into our system, Zurich never assigned counsel to answer the complaint” did not constitute a reasonable excuse (see CPLR 5015 [a] [1]; Gray v B. R. Trucking Co., supra; Weinberger v Judlau Contr., supra; Kaplinsky v Mazor, supra; Ennis v Lema, supra; O’Shea v Bittrolff, supra). In addition, the unsubstantiated affidavit of Congregation’s administrator, denying that Congregation had an office where the summons and complaint were served, was insufficient to rebut the presumption of proper service created by the affidavit of service and other documentary proof provided by the appellant (see Carrenard v Mass, 11 AD3d 501 [2004]; Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]; De La Barrera v Handler, 290 AD2d 476 [2002]).

In view of the lack of a reasonable excuse, it is unnecessary to consider whether the respondents sufficiently demonstrated a meritorious defense. Accordingly, the Supreme Court improvidently exercised its discretion in granting the respondents’ motion to vacate the default judgment.

The respondents’ remaining contentions are without merit. Schmidt, J.P, Santucci, Skelos and Covello, JJ., concur.