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[T] Dunn v. Braick9/14/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
Plaintiff's counsel had written a letter to Dr. Braick in August of 2003, advising that he was handling a medical malpractice claim on behalf of the Plaintiffs against Dr. Braick, and that he should turn the matter over to his carrier. Mrs. Dunn had previously written Dr. Braick requesting a copy of her records. Dr. Braick forwarded the letter to his carrier and, when the carrier advised him he had no coverage by letter dated August 26, 2003, he consulted Attorney George Mould and requested Attorney Mould to look into the coverage issue for him and, in the absence of coverage, handle the matter privately. Dr. Braick was aware that he had not paid his medical malpractice "tail" premium; he could not have been shocked that the carrier refused to cover him.
This action was commenced by service of a summons and complaint upon "a person of suitable age and discretion" at the actual dwelling place of the Defendant, Dr. Braick, on December 23, 2003. On February 3, 2004, a "Default Judgment" was signed and filed. An inquest was then ordered and was held on March 15, 2004. The Court issued a decision dated March 30, 2004, and a "Default Judgment" was filed on March 31, 2004.
Dr. Braick moves to vacate the Default Judgment(s).
Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc. 67 N.Y.2d 138, 492 N.E.2d 116, 501 N.Y.S.2d 8 [N.Y.,1986]:
CPLR 5015(a) provides that a party may be relieved from a judgment on the ground of, among others, "excusable default" (CPLR 5015 ). A defendant seeking to vacate a default under this provision must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action (see, e.g., Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270; Blake v. City of New York, 90 A.D.2d 531, 455 N.Y.S.2d 34).
A second provision for obtaining relief from a default judgment is found in CPLR 317. That section states, in part, that " person served with a summons other than by personal delivery to him or to his agent for service under [CPLR] 318 * * * may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment * * * upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense." As has been emphasized in numerous cases, there is no necessity for a defendant moving pursuant to CPLR 317 to show a "reasonable excuse" for its delay (see, e.g., Simon & Schuster v. Howe Plastics & Chems. Co., 105 A.D.2d *142604, 605, 481 N.Y.S.2d 82; Zuppa v. Bison Drywall & Insulation Co., 93 A.D.2d 997, 462 N.Y.S.2d 83).
Dr. Braick was not personally served. He alleges that he did not obtain knowledge of the same in time to defend, and that during this period he was in the United Arab Emirates seeking to resume his medical career. He therefore claims relief pursuant to CPLR §317. He also claims to have a meritorious defense and, in any event, a reasonable excuse for his failure to timely answer. He thus claims entitlement to relief pursuant to CPLR §5015(a) as well. Because we conclude that Dr. Braick did indeed have timely knowledge of the action but chose not to respond he cannot satisfy the statutory requirement of lack of knowledge. And, because he did have actual knowledge of the service, and yet chose to do nothing, he cannot claim a reasonable excuse for the delay.
In the affidavits in support of the motion to vacate the default judgment the person upon whom the summons and complaint were served Lori McSweeney is describe
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