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Stewart v. State Farm Mutual Auto. Ins. Co.

Appellate Division of the Supreme Court of New York, Third Department
Jul 5, 1979
71 A.D.2d 705 (N.Y. App. Div. 1979)

Opinion

July 5, 1979


Appeal from an order of the Supreme Court at Special Term, entered November 27, 1978 in Warren County, which denied defendant's motion seeking permission to serve an answer. On August 17, 1978, plaintiff commenced the present action seeking a declaratory judgment declaring that a certain insurance policy insuring plaintiff's vehicle and issued by appellant was in full force and effect on May 31, 1978 on which day said vehicle was involved in an accident. Following appellant's failure to answer, plaintiff obtained a default judgment against appellant. Shortly thereafter, appellant, by order to show cause, moved for leave to serve an answer. Special Term treated the motion as one to vacate a default judgment and denied it. This appeal ensued. In order to be granted the relief requested, it was necessary for appellant to show both that the default was excusable and that it has a meritorious defense (Gutbrodt v Gutbrodt, 64 A.D.2d 991). In order to establish an excusable default, appellant averred that the uniqueness of the allegations in the complaint and the facts involved required extensive investigation and such investigation was not completed in the time required to serve an answer. In our view, such excuses provide inadequate reasons for failing to answer and, therefore, appellant failed to demonstrate an excusable default (see John Malasky, Inc. v. Mayone, 54 A.D.2d 1059). Having so concluded, we need not consider the merits of appellant's alleged defenses. The order should be affirmed. Order affirmed, without costs. Mahoney, P.J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.


Summaries of

Stewart v. State Farm Mutual Auto. Ins. Co.

Appellate Division of the Supreme Court of New York, Third Department
Jul 5, 1979
71 A.D.2d 705 (N.Y. App. Div. 1979)
Case details for

Stewart v. State Farm Mutual Auto. Ins. Co.

Case Details

Full title:ROBERT S. STEWART, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 5, 1979

Citations

71 A.D.2d 705 (N.Y. App. Div. 1979)

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