Martinez v Government Empls. Ins. Co.
2014 NY Slip Op 00170 [113 AD3d 425]
January 9, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 5, 2014


Confesora Martinez, Respondent,
v
Government Employees Ins. Co., Appellant.

[*1] McDonnell & Adels, P.L.L.C., Garden City (Jannine A. Gordineer of counsel), for appellant.

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 11, 2012, which granted plaintiff's motion to vacate an order of dismissal entered upon her default, unanimously reversed, on the facts, without costs, and the motion denied.

Plaintiff failed to take any action to seek relief from the dismissal order until a year after it was issued (see Forbes v New York City Tr. Auth., 88 AD3d 546 [1st Dept 2011]). While a court retains discretionary power to vacate a default judgment in the interest of justice, even when the motion is made more than a year after service of notice of entry, "that discretion should not be exercised where, as here, the moving party has demonstrated a lack of good faith, or been dilatory in asserting its rights" (Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 452 [1st Dept 1987]).

In any case, plaintiff failed to demonstrate a reasonable excuse and the legal merit of her asserted claim (see Benson Park Assoc., LLC v Herman, 73 AD3d 464 [1st Dept 2010]). Counsel's explanation that an unnamed attorney had appeared on the return date of the motion to request an adjournment and also appeared at a status conference scheduled in the courtroom was denied in a sworn statement by defendant's counsel. The complaint verified by counsel and the affirmation submitted by counsel in support of another motion are not made by a person with [*2]personal knowledge and, moreover, fail to provide specifics of the fraud and other claims (see Paez v 1610 St. Nicholas Ave. L.P., 103 AD3d 553, 554 [1st Dept 2013]; Peacock v Kalikow, 239 AD2d 188, 190 [1st Dept 1997]). Concur—Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels and Feinman, JJ.