CPLR R. 5015 Relief from judgment or order
O'Donnell v Frangakis, 2010 NY Slip Op 06622 (App. Div., 2nd 2010)
A defendant seeking to vacate an order or judgment entered upon his or her default in appearing and answering the complaint must demonstrate a reasonable excuse for [his or her] delay in appearing and answering the complaint and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Li Gang Ma v Hong Guang Hu, 54 AD3d 312; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522). The defendant's excuses that her insurer denied and disclaimed coverage and that she could not initially afford an attorney were insufficient to excuse her lengthy delay in appearing (see Matter of Nieto, 70 AD3d 831; Toland v Young, 60 AD3d 754;Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 717; Rottenberg v Lerner, 232 AD2d 395). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Toland v Young, 60 AD3d 754; Levi v Levi, 46 AD3d 519, 520; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, the defendant's motion should have been denied.
The bold is mine.
If the insurer denied and disclaimed coverage, how will plaintiff get paid. The Appellate DIvision cites to cases where the party claiming lack of funds failed to provide sufficient proof, so it isn't always a too bad so sad situation. But what proof would the court need? Tax returns?
bruteforcelawyer.com 