651486/2019

Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.

Law Offices of Gary Tsirelman P.C., Brooklyn, NY (Jung Pryjma of counsel), for defendant Wellmart RX Inc.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Jeremy Martinez was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Martinez assigned the right to collect no-fault benefits under that policy to various treating medical providers, including defendant Wellmart RX Inc. Wellmart applied for no-fault benefits, which American Transit denied.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Martinez or to the other defendants (all medical-provider assignees of Martinez). Wellmart was the only defendant that appeared in the action. American Transit moved for default judgment under CPLR 3215 against Martinez and several of the other non-appearing defendants.

This court granted the default-judgment motion without opposition. The court issued a declaration that Martinez and the non-appearing providers “are not entitled to no-fault benefits as a result of a motor vehicle accident involving Jeremy Martinez . . . due to Jeremy Martinez’s failure to appear for duly scheduled independent medical examinations.” (NYSCEF No. 34 at 1-2 [capitalization omitted].) The court also severed and continued the action as against the remaining defendants, including Wellmart. (See id. at 2.)

American Transit now moves for summary judgment under CPLR 3212 against Wellmart. The motion is denied.

DISCUSSION

American Transit argues that because Wellmart is Martinez’s assignee, Wellmart’s claim for benefits is derivative of Martinez’s rights under the no-fault policy—and thus that the default judgment against Martinez ousted Wellmart’s right to claim benefits. This court disagrees. Decades ago, the Appellate Division held that when an assignment of no-fault benefits is made prior to the institution of legal action, a decision on default against the assignor does not bar the assignee from asserting a claim to no-fault benefits. (See Lakeside Hosp. v Government Empls. Ins. Co., 70 AD2d 658, 658 [2d Dept 1979], citing Gramatan Home Inv. Corp. v Lopez, 46 NY2d 481, 486-487 [1979].)

To be sure, in Lakeland Hospital the court noted that the assignee was not a party to the prior arbitration. Here, as American Transit points out, Wellmart is a party defendant. But although Wellmart is a party to this action, it was not a party to the prior motion. To the contrary, American Transit’s motion papers expressly stated that “[n]o relief is sought at this time with respect to” Wellmart. (NYSCEF No. 20 at 1.) This court’s prior order in this action, although it “awarded a default judgment to [American Transit] against [Wellmart’s] assignor . . . did not declare the rights of [American Transit] as against [Wellmart].” The default-judgment order thus does not have preclusive effect on the current summary-judgment motion. (Jamaica Wellness Medical, P.C. v Mercury Casualty Co., 2018 NY Slip Op 51128[U], at *2 (App Term 2d Dept 2018]; accord Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 57 Misc 3d 9, 11 [App Term 2d Dept 2017].)

American Transit argues that the grant of default judgment against Martinez had the effect of declaring that the no-fault policy was void, leaving Martinez without any claim to benefits that he could [*2]have assigned to Wellmart in the first place. But the judgment that American Transit requested from this court, and which this court entered, did not reach so far. As noted above, the default judgment merely declared that Wellmart (and the other non-appearing defendants) are not entitled to benefits, without going on to declare that the no-fault policy itself was void. (See NYSCEF No. 34 at 1-2.) In any event, in Lakeland Hospital, the arbitration decision entered on the assignor’s default sustained the insurer’s argument that the assignor had no claim to benefits as a result of her no-fault policy having been canceled outright prior to the occurrence—and thus prior to any assignment—for nonpayment of premiums. (See 70 AD2d at 658.) The Second Department nonetheless held that this prior arbitration decision did not preclude the assignee from claiming a right to benefits. (See id.)

American Transit thus is not entitled to summary judgment against Wellmart based merely on this court’s prior default-judgment order against Martinez.

Whether American Transit is Entitled to Summary Judgment on the Merits

Alternatively, American Transit argues that Martinez’s failure to appear for scheduled independent medical examinations (IMEs) defeats coverage under the no-fault policy, and thus forecloses Wellmart’s claim to benefits. This court is not persuaded.

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) One such requirement is that if the insurer requests additional verification of a no-fault claim in the form of an IME, the IME must be scheduled to occur “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR § 65-3.5 [d].) American Transit has not shown that it satisfied this 30-calendar-day timeframe. The documents submitted by American Transit show at most that the first IME was scheduled to be held 26 days after the date of the scheduling notice. (See NYSCEF No. 41 at 17.) Those documents do not reflect when American Transit received the prescribed verification form, as required to determine whether the IME’s scheduled date satisfied the 30-day requirement.^[FN1] Given this failure of proof, American Transit has not satisfied its initial prima facie burden at summary judgment. (See Longevity Medical Supply, 131 AD3d at 841.)^[FN2]

American Transit argues that these deadlines apply only to “medical examinations that are necessary to determine if [a] particular claim should be paid,” as opposed to “being scheduled for a more broad reason, ie to determine, generally, if the claimant needs future treatment.” (NYSCEF No. 47 at 12-13.) Even assuming for the sake of argument that this interpretive argument is correct, it does not avail American Transit here.

The record evidence on this motion reflects only that American Transit received Martinez’s NF-2 benefits application on October 2, 2017 (see NYSCEF No. 41 at 11-14 [mailroom stamp and date/time footer]), and prepared an IME scheduling notice 10 days later, on October 12, 2017 (see id. at 17). That short time period itself suggests a connection between Martinez’s initial benefits claim and the scheduling of an IME. More fundamentally, there is no record evidence indicating any other purpose for holding the [*3]IME that could even potentially take that IME out of the scheduling framework of 11 NYCRR § 65-3.5 (b) through (d).

Accordingly, for the foregoing reasons it is hereby

ORDERED that American Transit’s motion under CPLR 3212 for summary judgment in its favor as to defendant Wellmart is denied.

8/21/2020

Footnotes

Footnote 1:American Transit has provided the NF-2 claim form provided by Martinez, which contains markings indicating that American Transit received the form on October 2, 2017, 36 days before the IME date. (See NYSCEF No. 41 at 11-14 [mailroom stamp and date/time footer].) But it has not provided the NF-3 verification form.

Footnote 2:In arguing that it could deny no-fault coverage due to Martinez’s failure to appear for IMEs even if those IMEs were not timely scheduled (see NYSCEF No. 54 at 5-10), American Transit does not mention the First Department’s decision in Longevity Medical Supply.

650105/2019

Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.

Law Offices of Gary Tsirelman P.C., Brooklyn, NY (Jung Pryjma of counsel), for defendant City Wide Health Facility Inc.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to/for SUMMARY JUDGMENT.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Marsillant Wildex was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Wildex assigned the right to collect no-fault benefits under that policy to various treating medical providers, including defendant City Wide Health Facility Inc. City Wide applied for no-fault benefits, which American Transit denied.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Wildex or to the other defendants (all medical-provider assignees of Wildex). City Wide was the only defendant that appeared in the action. American Transit moved for default judgment under CPLR 3215 against Wildex and the other non-appearing defendants.

This court granted the default-judgment motion without opposition. The court issued a declaration that Wildex and the non-appearing providers “are not entitled to no-fault benefits as a result of a motor vehicle accident involving Marsillant Wildex . . . due to Marsillant Wildex’s failure to appear for duly scheduled independent medical examinations.” (NYSCEF No. 39 at 2-3 [capitalization omitted].) The court also severed and continued the action as against City Wide. (See id. at 3.)

American Transit now moves for summary judgment under CPLR 3212 against City Wide. The motion is denied.

DISCUSSION

American Transit argues that because City Wide is Wildex’s assignee, City Wide’s claim for benefits is derivative of Wildex’s rights under the no-fault policy—and thus that the default judgment against Wildex ousted City Wide’s right to claim benefits. This court disagrees. Decades ago, the Appellate Division held that when an assignment of no-fault benefits is made prior to the institution of legal action, a decision on default against the assignor does not bar the [*2]assignee from asserting a claim to no-fault benefits. (See Lakeside Hosp. v Government Empls. Ins. Co., 70 AD2d 658, 658 [2d Dept 1979], citing Gramatan Home Inv. Corp. v Lopez, 46 NY2d 481, 486-487 [1979].)

To be sure, in Lakeland Hospital the court noted that the assignee was not a party to the prior arbitration. Here, as American Transit points out, City Wide is a party defendant. But although City Wide is a party to this action, it was not a party to the prior motion. To the contrary, American Transit’s motion papers expressly stated that “[n]o relief is sought at this time with respect to” City Wide. (NYSCEF No. 27 at 2.) This court’s prior order in this action, although it “awarded a default judgment to [American Transit] against [City Wide’s] assignor . . . did not declare the rights of [American Transit] as against [City Wide].” The default-judgment order thus does not have preclusive effect on the current summary-judgment motion. (Jamaica Wellness Medical, P.C. v Mercury Casualty Co., 2018 NY Slip Op 51128[U], at *2 (App Term 2d Dept 2018]; accord Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 57 Misc 3d 9, 11 [App Term 2d Dept 2017].)

American Transit argues that the grant of default judgment against Wildex had the effect of declaring that the no-fault policy was void, leaving Wildex without any claim to benefits that he could have assigned to City Wide in the first place. But the judgment that American Transit requested from this court, and which this court entered, did not reach so far. As noted above, the default judgment merely declared that Wildex (and the other non-appearing defendants) are not entitled to benefits, without going on to declare that the no-fault policy itself was void. (See NYSCEF No. 39 at 2-3.) In any event, in Lakeland Hospital, the arbitration decision entered on the assignor’s default sustained the insurer’s argument that the assignor had no claim to benefits as a result of her no-fault policy having been canceled outright prior to the occurrence—and thus prior to any assignment—for nonpayment of premiums. (See 70 AD2d at 658.) The Second Department nonetheless held that this prior arbitration decision did not preclude the assignee from claiming a right to benefits. (See id.)

American Transit thus is not entitled to summary judgment against City Wide based merely on this court’s prior default-judgment order against Wildex.

Whether American Transit is Entitled to Summary Judgment on the Merits

Alternatively, American Transit argues that Wildex’s failure to appear for scheduled independent medical examinations (IMEs) defeats coverage under the no-fault policy, and thus forecloses City Wide’s claim to benefits. This court is not persuaded.

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) One such requirement is that if the insurer requests additional verification of a no-fault claim in the form of an IME, the IME must be scheduled to occur “within 30 calendar days from the date [*3]of receipt of the prescribed verification forms.” (11 NYCRR § 65-3.5 [d].) American Transit has not shown that it satisfied this 30-calendar-day timeframe. To the contrary, the documents submitted by American Transit indicate that the first IME was scheduled to be held 43 days after the date of the scheduling notice itself. (See NYSCEF No. 48 at 20.) Given this failure of proof, American Transit has not satisfied its initial prima facie burden at summary judgment. (See Longevity Medical Supply, 131 AD3d at 841.)^[FN1]

American Transit argues that these deadlines apply only to “medical examinations that are necessary to determine if [a] particular claim should be paid,” as opposed to “being scheduled for a more broad reason, ie to determine, generally, if the claimant needs future treatment.” (NYSCEF No. 54 at 12-13.) Even assuming for the sake of argument that this interpretive argument is correct, it does not avail American Transit here.

The record evidence on this motion reflects only that American Transit received Wildex’s NF-2 benefits application on July 31, 2017 (see NYSCEF No. 48 at 11-14 [mailroom stamp and date/time footer]), and prepared an IME scheduling notice 16 days later, on August 16, 2017 (see id. at 20). That short time period itself suggests a connection between Wildex’s initial benefits claim and the scheduling of an IME. More fundamentally, there is no record evidence indicating any other purpose for holding the IME that could even potentially take that IME out of the scheduling framework of 11 NYCRR § 65-3.5 (b) through (d).

Accordingly, for the foregoing reasons it is hereby

ORDERED that American Transit’s motion under CPLR 3212 for summary judgment in its favor as to defendant City Wide is denied.

Defendants.

8/21/2020

Footnotes

Footnote 1:In arguing that it could deny no-fault coverage due to Wildex’s failure to appear for IMEs even if those IMEs were not timely scheduled (see NYSCEF No. 54 at 5-10), American Transit does not mention the First Department’s decision in Longevity Medical Supply.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gallo, Vitucci & Klar, LLP (Richard E. Weber and Marissa Dunderdale of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered March 18, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida and that, pursuant to Florida law, there was a lack of coverage due to the valid rescission of the automobile insurance policy and the refund of the insured’s premiums. Plaintiff appeals from an order of the Civil Court entered March 18, 2019 which denied plaintiff’s motion and granted defendant’s cross motion.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policyholder had applied for automobile insurance, he did not reside at the Florida address listed on his insurance application, and that the insured vehicle was not being garaged in Florida [*2]for the period stated on the application. Subsequent to defendant’s investigation, it initiated a declaratory judgment action in Florida Circuit Court in Broward County in which a final judgment was entered declaring the subject policy null and void based on the applicant’s misrepresentations in procuring the policy. Defendant then rescinded the policy ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in the application for insurance.

It is undisputed by the parties that Florida law applies. Inasmuch as defendant’s cross motion papers demonstrated that a rescission notice was sent to the insured, and that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]).

Plaintiff’s remaining arguments are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Decided on August 14, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on August 14, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on August 14, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on August 14, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on August 14, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

CV-707605/17-BX

Eppinger, Reingold & Korder (Ronald M. Eppinger of counsel), for plaintiff

Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for defendant

In this action to recover assigned first-party benefits for medical services rendered (see Insurance Law § 5101, et seq.), defendant Hereford Insurance Company (defendant) moves, pursuant to CPLR 3212, for an order of summary judgment dismissing the complaint of plaintiff Doctors United Inc., as assignee of Keith Davis (plaintiff). In opposition, plaintiff argues that the court should dismiss defendant’s motion as untimely and that the court should grant plaintiff summary judgment for defendant’s failure to either pay or deny the subject claims.

The court now dismisses defendant’s motion as untimely without good cause shown and declines to grant plaintiff’s request for the same relief, as also belatedly asserted without satisfactory excuse.

BACKGROUND

Plaintiff filed a summons and complaint against defendant, seeking overdue no-fault benefits plus interest thereon and attorneys’ fees. Annexed to the summons and complaint is an incomplete copy of a spreadsheet, entitled “Details of Disputed Claim” (summons and complaint). Said document includes, among other things, a column identified as “Date Bill Mailed” with numerous rows of noted dates (id.). The “Details of Disputed Claim” does not indicate what services, if any, were billed to defendant and does not chronicle where defendant allegedly “mailed” the bills (id.).

Defendant filed an answer, demand for verified written interrogatories and various demands. In response, plaintiff alleges that it provided defendant with discovery, including “a complete set of all of the bills at issue in this action” (affirmation in opposition, ¶ 6). However, no proof of mailing for those bills and no copies of the bills exist in the record.

Plaintiff filed a notice of trial, dated July 3, 2018.^[FN1] On November 16, 2018, defendant served plaintiff, by mail, with this motion for an order of summary judgment, dismissing the complaint on the ground that plaintiff never billed defendant (affidavit of service, dated Nov. 16, 2018). Plaintiff opposes the motion arguing that the motion should be dismissed as untimely, pursuant to CPLR 3212 (a).^[FN2] Plaintiff also seeks an order of summary judgment, contending that defendant neither paid nor denied any of the subject bills (see CPLR 3212 [b] [governing the grounds and supporting proof for a summary judgment motion]).

DISCUSSION

A motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (CPLR 3212 [a]; see also Uniform Rules for New York State Trial Courts [22 NYCRR] § 208.7 [b] [providing that “(a)ll formal pleadings in this court and verifications thereof shall be in conformity with CPLR article 30”]). The Court of Appeals defined “good cause” as requiring “a satisfactory explanation for the untimeliness” of the motion, and the Court interpreted Rule 3212 as otherwise prohibiting tardy, but “meritorious, nonprejudicial filings” (Brill v City of New York, 2 NY3d 648, 652 [2004, Kaye, Ch. J.] [construing rule 3212 (a) in the context of a Civil Court proceeding]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2006 mem] [citing Brill for the proposition that “statutory time frames . . . are not options, they are requirements”]; Rivera v State of New York, 34 NY3d 383, 402, n 12 [2019, Rivera, J., dissenting] [providing, in dicta, “that trial courts may only permit late summary judgment where the movant gives ‘a satisfactory explanation for the untimeliness'”]).

In refusing to countenance violations of the statutory deadline — absent good cause [*2]shown — the Court of Appeals emphasized with hope that “movants will develop a habit of compliance with [CPLR 3212 (a)] . . . rather than delay [motions for summary judgment] until trial looms” (id., at 653). The Court was firm that “not considering the merits of an unexcused, untimely motion” is both (1) “the correct remedy under the law” and (2) the result best calculated to “bring an undesirable practice to an end” (id., n 4).

Applying these principles here, defendant’s motion for summary judgment must be dismissed. Defendant concedes that it served this motion on plaintiff after the conclusion of the 120-day time period set forth in CPLR 3212 (a) (see CPLR 2103 [b] [2] [providing that, where the law prescribes a time period for service, the time “is measured from the service of a paper”]; see also CPLR 2211 [providing that “[a] motion on notice is made when a notice of the motion . . . is served”]; Esdaille v Whitehall Realty Co., 61 AD3d 435, 435-436 [1st Dept 2009] [applying the same]).^[FN3] Moreover, defendant merely contends that the belatedly filed motion does not prejudice plaintiff, appearing to overlook the need to establish a proper excuse for its tardiness. “No excuse at all . . . cannot be ‘good cause'” (Brill, 2 NY3d at 652).

Similarly, plaintiff’s request for summary judgement fails as asserted late without any proffered excuse. Plaintiff seeks summary judgment for the first time in opposition to defendant’s motion, and plaintiff served its affirmation in opposition well beyond 120 days after service of the notice of trial (affidavit of service, dated March 6, 2019).

Accordingly, it is

ORDERED that defendant’s motion for an order of summary judgment, dismissing plaintiff’s cause of action, is dismissed as untimely.

The constitutes the decision and order of the court.

DATE: August 11, 2020
Emily Morales-Minerva, J.

Footnotes

Footnote 1:Neither party indicates when plaintiff served the notice of trial on defendant, although there is no dispute that plaintiff served the notice of trial over 120 days prior to defendant serving this motion for summary judgment.

Footnote 2: Rule 3212 (a) of the CPLR provides, among other things, that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

Footnote 3: Defendant states: “The motion was drafted, signed and dated November 13, 2018 — which is within 120 days of the notice of trial. While the motion was not served until a few days later, Plaintiff is not prejudiced by the late motion” (affirmation in reply, ¶ 4).

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

The process server’s affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.