Matter of Tri-State Consumer Ins. Co. v Hereford Ins. Co., 2018 NY Slip Op 08249 [167 AD3d 416]
December 4, 2018
Appellate Division, First Department
[*1]
In the Matter of Tri-State Consumer Insurance Company, Appellant,
v
Hereford Insurance Company, Respondent.
Thomas Torto, New York, for appellant.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about June 29, 2017, which denied petitioner Tri-State’s motion to vacate the order and judgment (one paper), same court and Justice, entered December 28, 2015, denying upon default Tri-State’s petition to vacate two inter-company arbitration awards in favor of respondent Hereford Insurance Company (Hereford) and granting Hereford’s cross motion to confirm the arbitration awards, and denied Tri-State’s motion to stay enforcement of the judgment, entered February 16, 2016, in Hereford’s favor and against Tri-State in the total sum of $111,145.34, unanimously affirmed, without costs.
Although “there exists a strong public policy in favor of disposing of cases on their merits . . . this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action” ( Johnson-Roberts v Ira Judelson Bail Bonds , 140 AD3d 509 , 509 [1st Dept 2016]). Despite Tri-State’s contention that this Court has excused defaults caused by an attorney’s inadvertent failure to make a court appearance due to lack of notice ( see Toos v Leggiadro Intl., Inc. , 114 AD3d 559 [1st Dept 2014]), “claims of law office failure which are ‘conclusory and unsubstantiated’ cannot excuse default” ( Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC , 95 AD3d 789 , 790 [1st Dept 2012]).
At least two of Tri-State’s multiple defaults lack a substantiated excuse—its failure to submit opposition, and its failure to appear at the November 16, 2015 hearing despite counsel’s assignment two months prior—and those incidents, in addition to a pattern of dilatory conduct, warrant affirmance of the order on appeal. Since the default was not excusable, Tri-State’s motion to vacate the judgment was properly denied, regardless of whether it presented a potentially meritorious defense ( Amir M.C.W. v 2343, Inc. , 126 AD3d 453 , 454 [1st Dept 2015]). Concur—Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ..