Opinion
2002-08815.
Decided December 8, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 3, 2002, which, inter alia, granted the defendants' motion pursuant to CPLR 5015(a)(1) to vacate their default in appearing and answering.
Scott Lockwood, for appellant.
Patricia A. Murphy, for respondents.
Before: SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
A party seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense ( see Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141). The defendants reasonably relied on the insurer of the defendant Serafina Restaurant Corp. (hereinafter Serafina) to interpose an answer after the defendant Frank Caniglia, the president of Serafina, timely delivered the summons and complaint to his insurance broker, and the carrier failed to disclaim coverage or answer ( see Perez v. Linshar Realty Corp., 259 A.D.2d 532, 533; Fire Is. Pines v. Colonial Dormer Corp., 109 A.D.2d 815, 816; Swidler v. World-Wide Volkswagen Corp., 85 A.D.2d 239) . In addition, the defendants set forth facts sufficient to establish that they have a meritorious defense ( see Clarke v. Brooklyn Union Gas Co., 297 A.D.2d 779; Mittendorf v. Brooklyn Union Gas Co., 195 A.D.2d 449). Accordingly, the Supreme Court providently exercised its discretion in granting the defendants' motion to vacate the default.
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.