What did the court decide?

The appellate court reversed the trial court and granted the plaintiff leave to enter a default judgment on liability because the defendant did not show a reasonable excuse for answering late.

Who is affected by this decision?

The plaintiff (Geneta Haimov) benefits because liability is established by default; the defendant (Izchak Haimov) is disadvantaged because his late answer was rejected.

What happens next in the case?

With liability established, the case will proceed on damages only unless the defendant successfully pursues further relief; the plaintiff can seek judgment as to liability and then prove damages.

Why didn’t the defendant’s insurance delay excuse the late answer?

The court found the defendant’s counsel lacked personal knowledge of insurer delays and the insurer’s adjuster did not have knowledge of the earlier delay, so the defendant did not provide a sufficient, sworn explanation for the default.

Can the defendant appeal this appellate decision?

Possibly — the defendant may seek further review, such as an application to the Court of Appeals, but any further appeal would be subject to appellate rules and standards for leave to appeal.

Haimov v. Haimov

Docket 2024-05333

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilReversed

Filed: Apr 29, 2026 · 2 days ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Reversed
Citation: 2026 NY Slip Op 02633
Docket: 2024-05333

Appeal from an order denying the plaintiff's motion for leave to enter a default judgment on liability and granting the defendant's cross-motion to compel acceptance of his late answer in a personal injury action

Summary

The Appellate Division reversed a Nassau County Supreme Court order and granted the plaintiff leave to enter a default judgment on liability in a slip-and-fall personal injury case. The defendant failed to timely answer the complaint; when he served a late answer the plaintiff rejected it and moved for default judgment. The trial court had compelled the plaintiff to accept the late answer, but the appellate court found the defendant did not show a reasonable excuse for the delay (his counsel had no personal knowledge and the insurer’s affidavit was inadequate) and thus the trial court abused its discretion.

Issues Decided

Whether the defendant showed a reasonable excuse for failing to timely appear and answer the complaint
Whether the defendant demonstrated a potentially meritorious defense sufficient to defeat a motion for leave to enter a default judgment
Whether the trial court properly compelled the plaintiff to accept the defendant's untimely answer

Court's Reasoning

Under CPLR 3215, a plaintiff moving for a default judgment must show service, the facts of the claim, and the defendant's default. To oppose such a facially adequate motion, a defendant must show both a reasonable excuse for the default and a potentially meritorious defense. The defendant here failed to provide an affidavit from himself explaining the delay and his lawyer lacked personal knowledge about the insurer's alleged delay; the insurer's adjuster lacked knowledge of events before April 21, 2023. Because the defendant did not establish a reasonable excuse for the failure to timely answer, the court reversed the trial court's grant of relief to the defendant.

Authorities Cited

CPLR 3215(a)
Rosenzweig v Gubner194 AD3d 1086
Goldstein v Ilaz206 AD3d 976

Parties

Appellant: Geneta Haimov
Respondent: Izchak Haimov
Judge: Francis Ricigliano
Judge: Francesca E. Connolly
Attorney: Albert I. Cohen
Attorney: Charles Haviv
Attorney: Paul M. Tarr

Key Dates

Accident date (alleged): 2019-09-01
Action commenced: 2022-08-01
Defendant served late answer: 2023-06-08
Plaintiff moved for default judgment: 2023-08-01
Defendant opposed and cross-moved: 2023-09-26
Trial court order appealed from: 2024-04-11
Appellate decision: 2026-04-29

What You Should Do Next

1
Plaintiff: seek entry of default judgment on liability
File the necessary papers to have liability formally entered and schedule any required hearings or proceedings to establish damages.
2
Defendant: consult counsel about further review options
Speak with appellate counsel promptly to evaluate whether to seek further appellate review or post-judgment relief and to determine deadlines for such filings.
3
Both parties: prepare for damages phase
Exchange proof and disclosures relevant to damages, including medical records, bills, and expert testimony, since liability has been resolved in the plaintiff's favor.

Frequently Asked Questions

What did the court decide?: The appellate court reversed the trial court and granted the plaintiff leave to enter a default judgment on liability because the defendant did not show a reasonable excuse for answering late.
Who is affected by this decision?: The plaintiff (Geneta Haimov) benefits because liability is established by default; the defendant (Izchak Haimov) is disadvantaged because his late answer was rejected.
What happens next in the case?: With liability established, the case will proceed on damages only unless the defendant successfully pursues further relief; the plaintiff can seek judgment as to liability and then prove damages.
Why didn’t the defendant’s insurance delay excuse the late answer?: The court found the defendant’s counsel lacked personal knowledge of insurer delays and the insurer’s adjuster did not have knowledge of the earlier delay, so the defendant did not provide a sufficient, sworn explanation for the default.
Can the defendant appeal this appellate decision?: Possibly — the defendant may seek further review, such as an application to the Court of Appeals, but any further appeal would be subject to appellate rules and standards for leave to appeal.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Haimov v Haimov - 2026 NY Slip Op 02633

Haimov v Haimov

2026 NY Slip Op 02633

April 29, 2026

Appellate Division, Second Department

Geneta Haimov, appellant,

Izchak Haimov, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 29, 2026

2024-05333, (Index No. 611301/22)

Francesca E. Connolly, J.P.

Cheryl E. Chambers

Helen Voutsinas

Elena Goldberg Velazquez, JJ.

Cohen & Cohen Personal Injury Lawyers, P.C., Forest Hills, NY (Albert I. Cohen and Charles Haviv of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York, NY (Paul M. Tarr of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Francis Ricigliano, J.), entered April 11, 2024. The order denied the plaintiff's motion for leave to enter a default judgment on the issue of liability against the defendant and granted the defendant's cross-motion to compel the plaintiff to accept his late answer.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the plaintiff's motion for leave to enter a default judgment on the issue of liability against the defendant is granted, and the defendant's cross-motion to compel the plaintiff to accept his late answer is denied.

In September 2019, the plaintiff allegedly was injured when she tripped and fell on an allegedly raised, cracked, and uneven walkway in front of certain real property owned by the defendant. In August 2022, the plaintiff commenced this action. It is undisputed that the defendant did not timely answer the complaint. On June 8, 2023, the defendant served an answer, and on the same date, the plaintiff rejected the defendant's answer as untimely.

On August 1, 2023, the plaintiff moved for leave to enter a default judgment on the issue of liability against the defendant. The plaintiff's motion was supported by, inter alia, the complaint, an affidavit of merit from the plaintiff, an affidavit of service of the summons and complaint, the defendant's untimely answer, and the plaintiff's rejection of that answer. On September 26, 2023, the defendant opposed the plaintiff's motion and cross-moved to compel the plaintiff to accept his untimely answer. Among other things, the defendant's attorney contended that the defendant had a reasonable excuse for his default based upon the delay of his insurance company.

By order entered April 11, 2024, the Supreme Court denied the plaintiff's motion for leave to enter a default judgment on the issue of liability against the defendant and granted the defendant's cross-motion to compel the plaintiff to accept his late answer. The plaintiff appeals.

CPLR 3215(a) provides that "[w]hen a defendant has failed to appear, plead or
proceed to trial . . . the plaintiff may seek a default judgment against him [or her]" (
see

US Bank N.A. v Davis
, 196 AD3d 530, 532). "On a motion for leave to enter a default judgment, an applicant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the default" (
Barbetta v NY Auto Find, Inc.
, 221 AD3d 851, 853;
see
CPLR 3215[f];
B & H Flooring, LLC v Folger
, 228 AD3d 809, 813;
Banks v 110-18 198th St. Corp.
, 205 AD3d 869, 869). "Since defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them, when submitting proof of facts constituting a claim, a plaintiff need only set forth enough facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action" (
Rosenzweig v Gubner
, 194 AD3d 1086, 1088 [citation and internal quotation marks omitted];
see

Woodson v Mendon Leasing Corp.
, 100 NY2d 62, 71).

"To successfully oppose a facially adequate motion for leave to enter a default judgment . . . on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action" (
Nowakowski v Stages
, 179 AD3d 822, 823 [internal quotation marks omitted];
see

Rosenzweig v Gubner
, 194 AD3d at 1089). Likewise, to compel the plaintiff to accept his untimely answer, the defendant was required to demonstrate both a reasonable excuse for the delay and a potentially meritorious defense to the action (
see

Goldstein v Ilaz
, 206 AD3d 976, 976;
Belches v City of New York
, 191 AD3d 754, 755;
U.S. Bank N.A. v Barr
, 139 AD3d 937, 937).

Here, in opposition to the plaintiff's facially adequate motion for leave to enter a default judgment, the defendant failed to demonstrate a reasonable excuse for his default in failing to timely appear or answer the complaint (
see

Rosenzweig v Gubner
, 194 AD3d at 1089). The defendant did not submit his own affidavit explaining the reason for the delay, and the defendant's attorney lacked personal knowledge of the delays allegedly occasioned by the defendant's insurance carrier (
see

Goldstein v Ilaz
, 206 AD3d at 977;
Rochdale Ins. Co. v Fairview Nursing Care Ctr., Inc.
, 186 AD3d 1425, 1425;
Sargsyan v Kaieteur Constr., Inc.
, 171 AD3d 826, 827). Although the defendant also submitted the affidavit of Michael Dubyk, a senior claims adjuster at A.G. Risk Management who was assigned to handle the insurance claim in this matter, Dubyk lacked personal knowledge of the lengthy delay prior to April 21, 2023. Further, the defendant provided no reasonable excuse for his more than three-month delay in moving to compel the plaintiff to accept his late answer after it was rejected by the plaintiff as untimely (
see

Sargsyan v Kaieteur Constr., Inc.
, 171 AD3d at 827). The absence of a reasonable excuse for the defendant's default renders it unnecessary to determine whether he demonstrated the existence of a potentially meritorious defense (
see

Goldstein v Ilaz
, 206 AD3d at 977;
Sargsyan v Kaieteur Constr., Inc.
, 171 AD3d at 827).

Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendant's cross-motion to compel the plaintiff to accept his late answer and denying the plaintiff's motion for leave to enter a default judgment on the issue of liability against the defendant.

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph