December 31, 2008

Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U))

Headnote

The court considered a case in which a provider was seeking to recover assigned first-party no-fault benefits, but the defendant had been granted summary judgment on default. The main issue decided was whether the plaintiff's motion to vacate the default judgment and deny the defendant's motion for summary judgment should be granted. The court held that the plaintiff's claim of law office failure did not amount to a reasonable excuse for the default, as it was conclusory, undetailed, and uncorroborated. Therefore, the court reversed the order granting the plaintiff's motion to vacate the default judgment and denied the defendant's motion for summary judgment. The court did not consider any other issues in the case.

Reported in New York Official Reports at Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U))

Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U)) [*1]

Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co.

2008 NY Slip Op 52585(U) [22 Misc 3d 126(A)]

Decided on December 31, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on December 31, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1413 K C.

Acupuncture Healthcare Plaza, P.C. a/a/o JURI BADOVICH, Respondent,
against
Zurich Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered July 12, 2007. The order, insofar as appealed from, granted plaintiff’s motion to vacate an order granting, on plaintiff ‘s default, a motion by defendant for summary judgment, and, upon such vacatur, denied defendant’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought to vacate the order granting defendant’s motion for summary judgment and, upon such vacatur, to deny defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court below granted defendant’s motion for summary judgment on default. Thereafter, plaintiff moved, inter alia, to vacate the order entered upon its default and, upon such vacatur, to deny defendant’s motion for summary judgment. Plaintiff’s counsel alleged in the moving papers that the default was due to law office failure. By order entered July 7, 2007, the Civil Court, insofar as relevant to this appeal, granted plaintiff’s motion to vacate the order entered upon its default and, upon such vacatur, denied defendant’s motion for summary judgment.

To be relieved of its default, plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). The conclusory, undetailed and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). Plaintiff’s counsel offered no explanation in the motion papers as to why he failed to submit written opposition to the motion or appear on the adjourned date of the motion. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought to vacate the order entered upon its default and, upon [*2]such vacatur, to deny defendant’s motion for summary judgment is denied.

In view of the foregoing, we pass upon no other issue.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008