Leifer v. Pilgreen Corp., 62 A.D.3d 759 (N.Y. App. Div. 2009). · Go Syfert
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Leifer v. Pilgreen Corp., 62 A.D.3d 759 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: Blythe v. BJ's Wholesale Club, Inc. (nyappdiv, 2014-12-31)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Blythe v. BJ's Wholesale Club, Inc.
N.Y. App. Div. · 2014 · confidence medium
Further, the appellant’s insurance carrier’s lengthy delay before defending the action, without more, was insufficient to establish a reasonable excuse for the default (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632 [2010]; Kramer v Oil Servs., Inc., 65 AD3d 523, 523-524 [2009]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787 [2008]).
discussed Cited as authority (rule) Loaiza v. Guzman
N.Y. App. Div. · 2013 · confidence medium
Accordingly, the plaintiffs’ motion for leave to enter a default judgment on the issue of liability against the defendants should have been granted and the defendants’ cross motion pursuant to CPLR 3012 (d) for leave to serve a late answer and to compel the plaintiffs to accept service of that answer, should have been denied (see Kolonkowski v Daily News, L.P., 94 AD3d 704, 706 [2012]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]).
discussed Cited as authority (rule) Loaiza v. Guzman
N.Y. App. Div. · 2013 · confidence medium
Accordingly, the plaintiffs’ motion for leave to enter a default judgment on the issue of liability against the defendants should have been granted and the defendants’ cross motion pursuant to CPLR 3012 (d) for leave to serve a late answer and to compel the plaintiffs to accept service of that answer, should have been denied (see Kolonkowski v Daily News, L.P., 94 AD3d 704, 706 [2012]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]).
discussed Cited as authority (rule) Lane v. Smith
N.Y. App. Div. · 2011 · confidence medium
A defendant seeking to vacate a default must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Assael v 15 Broad St., LLC, 71 AD3d 802, 803 [2010]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]).
discussed Cited as authority (rule) Ogman v. Mastrantonio Catering, Inc.
N.Y. App. Div. · 2011 · confidence medium
To successfully oppose the plaintiffs’ motion and in support of its cross motion to compel the plaintiffs to accept the late answer, the defendant was required to demonstrate a justifiable excuse for its default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; May v Hartsdale Manor Owners Corp., 73 AD3d 713 [2010]; Gross v Kail, 70 AD3d 997, 998 [2010]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Kouzios v Dery, 57 AD3d 949 [2008]).
discussed Cited as authority (rule) Maida v. Lessing's Restaurant Services, Inc.
N.Y. App. Div. · 2011 · confidence medium
In support of its motion, which was not made until nine months after the order granting the plaintiffs motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632 [2010]; Kramer v Oil Servs., Inc., 65 AD3d 523, 524 [2009]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787 [2008]; Segovia v Delcon Constr.
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) Assael v. 15 Broad Street, LLC
N.Y. App. Div. · 2010 · confidence medium
Furthermore, the defendant’s explanations for failing to oppose the plaintiffs motion for leave to enter a default judgment were not reasonable (see Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Poland, v Young, 60 AD3d 754, 755 [2009]; Segovia v Delcon Constr.
cited Cited as authority (rule) Gartner v. Unified Windows, Doors & Siding, Inc.
N.Y. App. Div. · 2010 · confidence medium
Trucking Co., 59 NY2d 649, 650 [1983]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Segovia v Delcon Constr.
Retrieving the full opinion text from the archive…
Zalman Leifer
v.
Pilgreen Corporation
Appellate Division of the Supreme Court of the State of New York.
May 12, 2009.
62 A.D.3d 759
Cited by 10 opinions  |  Published

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated October 15, 2007, which denied their motion for leave to enter judgment on the issue of liability upon the defendant’s failure to appear or answer and to set the matter down for an inquest on the issue of damages, and granted the defendant’s cross motion for leave to serve a late answer nunc pro tunc.

Ordered that the order is reversed, on the law, on the facts,[*760] and in the exercise of discretion, with costs, the plaintiffs’ motion is granted, the defendant’s cross motion is denied, and the matter is remitted to the Supreme Court, Kings County, for an inquest on the issue of damages.

It is uncontested that the defendant failed to timely serve its answer. The stipulation extending its time to do so expired in October 2006 and no extension thereof was granted or even sought. Thus, in order to successfully oppose the plaintiffs’ motion for leave to enter a default judgment against it, the defendant was required to demonstrate a justifiable excuse for its default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Kouzios v Dery, 57 AD3d 949 [2008]; Mjahdi v Maguire, 21 AD3d 1067, 1068 [2005]; cf. Giovanelli v Rivera, 23 AD3d 616 [2005]). The defendant failed to do so.

The defendant’s insurance carrier’s long delay before defending this action, without more, was insufficient to establish a reasonable excuse for the default (see Martinez v D’Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787 [2008]; Segovia v Delcon Constr. Corp., 43 AD3d 1143 [2007]; Lemberger v Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2006]). Additionally, the defendant failed to demonstrate the existence of a meritorious defense. Accordingly, the plaintiffs’ motion for leave to enter a default judgment and to set the matter down for an inquest should have been granted and the defendant’s cross motion for leave to serve a late answer nunc pro tunc should have been denied (see CPLR 3012 [d]).

Furthermore, the court erred in deeming the issue of timeliness of the answer waived by the plaintiffs’ withdrawal of their prior motion for a default judgment. After the defendant served a late answer, the plaintiffs promptly moved for the same relief, bringing their objection to the attention of the defendant and the court (see Katz v Perl, 22 AD3d 806, 807 [2005]). Skelos, J.P., Florio, Balkin and Belen, JJ., concur.