State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522550 

________________________________

RICHARD L. GAGE,

Appellant,

v MEMORANDUM AND ORDER

VILLAGE OF CATSKILL,

Respondent.

________________________________

Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Horigan, Horigan & Lombardo, PC, Amsterdam (Joseph D.

Giannetti of counsel), for appellant.

Shantz & Belkin, Latham (M. Randolph Belkin of counsel),

for respondent.

__________

Clark, J. 

Appeal from an order of the Supreme Court (Elliott, J.),

entered March 18, 2015 in Greene County, which granted

defendant's motion to vacate a default judgment entered against

it.

On May 9, 2012, plaintiff was jogging along a sidewalk in

the Village of Catskill, Greene County when he tripped over a

piece of metal that was protruding from the sidewalk and injured

himself. Believing that the sidewalk was maintained by the Town

of Catskill, he filed a pro se notice of claim against the Town,

as well as the County of Greene, on or about August 6, 2012. 

Plaintiff was subsequently notified by Selective Insurance

Company (hereinafter SIC), the insurer representing the Town,

that the Town was not liable because the incident had occurred
-2- 522550 

within defendant's boundaries. Plaintiff, in turn, hired counsel

and served a new notice of claim on defendant on or about October

5, 2012, but it was rejected as untimely by SIC, which also

represented defendant. 

Thereafter, plaintiff applied for permission to serve a

late notice of claim. The application was granted and the notice

of claim was served on defendant on May 1, 2013. Plaintiff

proceeded to commence this negligence action against defendant in

August 2013 and moved for a default judgment in May 2014 based on

defendant's nonappearance. Supreme Court granted the motion, and

defendant thereafter moved pursuant to CPLR 5015 (a) (1) to

vacate the default judgment. Supreme Court granted the motion,

and plaintiff now appeals, claiming that defendant failed to

demonstrate a reasonable excuse for its default.

"A party seeking to vacate a judgment of default must

demonstrate a reasonable excuse for the default and the existence

of a meritorious defense" (Passeri v Tomlins, 141 AD3d 816, 817

[2016] [citation omitted]; see CPLR 5015 [a] [1]; Eugene

DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). 

"The reasonableness of a proffered excuse for a default is a

matter within the discretion of the trial court" (Kurlander v

Willie, 45 AD3d 1006, 1007 [2006] [citation omitted]; see Trepel

v Greenman-Pedersen, Inc., 99 AD3d 789, 791 [2012]; Krieger v

Cohan, 18 AD3d 823, 824 [2005]). 

In support of its motion, defendant submitted the affidavit

of the Village Clerk who acknowledged that she was served with a

copy of the summons and complaint on August 20, 2013. She

asserted that the summons and complaint were promptly forwarded

to defendant's insurance agent, and defendant provided

documentary evidence corroborating her assertion. She stated

that, based on a November 2012 letter from counsel assigned by

SIC to represent defendant in connection with the notice of claim

and a March 2013 letter from an SIC representative regarding its

counsel's response to plaintiff's application to file a late

notice of claim, she believed that defendant's legal interests

were being represented by SIC's counsel at the time that the

action was commenced. She further stated that, although she also

received plaintiff's motion for a default judgment, she did not
-3- 522550 

review its contents because, among other things, she assumed that

the motion was being handled by counsel. Defendant also

submitted the affirmation of its attorney, who averred that SIC

had no record of the summons and complaint having been received.

Contrary to plaintiff's claim, this is not a case in which

the excuse offered for the default is the insurer's delay in

responding or interposing a defense on behalf of its insured (see

Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671,

672 [2006]; Krieger v Cohan, 18 AD3d at 824; Cilindrello v

Rayabin, 297 AD2d 699, 699 [2002]). Rather, defendant's default

was based upon its good faith, albeit mistaken, belief that its

legal interests were being represented by SIC in the pending

action, a belief that stemmed from SIC's involvement in the case

from the time that the notice of claim was served and its

appointment of counsel to represent defendant in the litigation

that followed (see Gerdes v Canales, 74 AD3d 1017, 1018 [2010];

Evolution Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040

[2009]; compare Trepel v Greenman-Pedersen Inc., 99 AD3d at 791). 

Under these circumstances, Supreme Court providently exercised

its discretion in finding that defendant demonstrated a

reasonable excuse for its failure to appear in the action. 

Furthermore, defendant put forth a meritorious defense to the

action, namely, that the piece of metal over which plaintiff

tripped was a broken sign that had been erected by the state to

control pedestrian traffic along a state highway that is not

maintained by defendant. In view of the foregoing, we find no

reason to disturb Supreme Court's vacatur of the default

judgment.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
-4- 522550 

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court