May 12, 2011

Omega Diagnostic Imaging, P.C. v MVAIC (2011 NY Slip Op 50867(U))

Headnote

In this action by a provider to recover assigned first-party no-fault benefits, a default judgment was entered against MVAIC and the Civil Court denied its motion to vacate under CPLR 5015. MVAIC argued that Insurance Law 5214 barred the entry of a default judgment against it. The Appellate Term affirmed, holding that section 5214 does not bar a default judgment against MVAIC where it is the named defendant and has defaulted. Because that defense lacked merit, the court found it unnecessary to decide whether MVAIC had shown a reasonable excuse for its default.

Reported in New York Official Reports at Omega Diagnostic Imaging, P.C. v MVAIC (2011 NY Slip Op 50867(U))

[*1]
Omega Diagnostic Imaging, P.C. v MVAIC
2011 NY Slip Op 50867(U) [31 Misc 3d 143(A)]
Decided on May 12, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 12, 2011
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-2082 K C.

Omega Diagnostic Imaging, P.C. as Assignee of Lentz Jean-baptiste, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 14, 2008. The order denied defendant’s motion to vacate a default judgment.


ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate a default judgment entered against it. MVAIC’s proffered defense lacks merit since Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted (see Craniofacial Pain Mgt. v MVAIC, 29 Misc 3d 130[A], 2010 NY Slip Op 51843[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 25 Misc 3d 138[A], 2009 NY Slip Op 52363[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 12, 2011