December 13, 2019

Island Life Chiropractic Pain Care, PLLC v MVAIC (2019 NY Slip Op 52061(U))

Headnote

A defendant seeking to open an excusable answering default must show a reasonable excuse and a potentially meritorious defense. In this assigned no-fault action, the provider sought a default judgment, while MVAIC cross-moved to open its default and compel acceptance of a late answer. Applying CPLR 5015 (a) (1), the Appellate Term, Second Department, found no improvident exercise of discretion in accepting MVAIC's excuse. MVAIC also showed a potentially meritorious lack-of-coverage defense that the alleged injuries did not arise from an insured incident. The order denying the provider's motion and granting MVAIC's cross motion was affirmed.

Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v MVAIC (2019 NY Slip Op 52061(U))

[*1]
Island Life Chiropractic Pain Care, PLLC v MVAIC
2019 NY Slip Op 52061(U) [66 Misc 3d 130(A)]
Decided on December 13, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1502 K C

Island Life Chiropractic Pain Care, PLLC, as Assignee of Defoe, Ecedro, Appellant,

against

MVAIC, Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Barbara Carabell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 22, 2018. The order denied plaintiff’s motion for entry of a default judgment and granted defendant’s cross motion to open its default in answering and to compel plaintiff to accept defendant’s late answer.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for the entry of a default judgment and granted defendant’s cross motion to open its default in answering and to compel plaintiff to accept defendant’s late answer.

A defendant seeking to open a default in answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

Contrary to plaintiff’s contention, the Civil Court did not improvidently exercise its discretion in finding that defendant had established a reasonable excuse for not timely answering the complaint. Further, defendant demonstrated that it had a potentially meritorious defense as to whether there was a lack of coverage for plaintiff’s claims because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

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