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Reassertion of Importance: Extending Time to Answer (NY)

January 25, 2019

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<p style="text-align: justify;">In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2019/01/Lev-Aminov-M.D.-as-Assignee-of-April-Cuffy-v.-Allstate-Ins.-Co..pdf">Lev Aminov, M.D., as Assignee of April Cuffy v. Allstate Ins. Co.</a>,</em> the 2<sup>nd</sup> Department, Appellate Term held that a defendant’s attempt at vacating a default judgement and compelling plaintiff to accept its answer fell short.</p>
<p style="text-align: justify;">This action was commenced on September 16, 2014 by service of the Summons and Complaint on an Allstate employee. A default judgement was entered on October 31, 2014, due to Allstate’s failure to appear or answer. Almost exactly one year later, Allstate moved pursuant to CPLR 5015(a)(1) and (4) to vacate the default judgement and compel plaintiff to accept defendant’s answer.</p>
<p style="text-align: justify;">The court indicated that the law was clear on this issue. Allstate needed to “demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action.” Allstate offered an affidavit from a claims adjuster, but not from the individual who was served with the Summons and Complaint. The court also pointed out that it took Allstate eleven (11) months to move to vacate the default judgment. Taking these factors into consideration, the court concluded that Allstate did not provide a reasonable excuse for the default. Therefore, Allstate’s motion seeking to vacate the default judgement and compel plaintiff to accept its answer was denied.</p>
<p style="text-align: justify;">Thus, this case illustrates the importance of timely filings, as well as the factual support likely needed to prevail in having a default judgment vacated.</p>
<p style="text-align: justify;">Thanks to Marc Schauer for his contribution to this post.  Please email <a href="chayes@wcmlaw.com">Colleen E.  Hayes</a> with any questions.</p>

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