July 28, 2011

Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U))

Headnote

The relevant facts of the case involved a provider attempting to recover first-party no-fault benefits from an insurance company. The provider moved to enter a default judgment against the insurance company after they failed to respond to the complaint, but the motion was only conditionally granted, ordering the insurance company to serve an answer within 30 days. The main issue at hand was whether the provider's motion for default judgment should have been granted unconditionally. The court held that the provider's motion papers did not demonstrate their entitlement to have the motion for default judgment granted unconditionally, as they failed to provide a verified complaint or an affidavit from a party with personal knowledge of the facts, as required by the CPLR 3215 (f). Therefore, the appellate court affirmed the order without costs.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U))

Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U)) [*1]

Eagle Surgical Supply, Inc. v QBE Ins. Co.

2011 NY Slip Op 51455(U) [32 Misc 3d 134(A)]

Decided on July 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., GOLIA and RIOS, JJ
2010-874 Q C.

Eagle Surgical Supply, Inc. as Assignee of Miguel Wellems , Appellant,
against
QBE Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 11, 2010. The order conditionally granted plaintiff’s motion for leave to enter a default judgment only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment in the amount demanded in 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, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff’s motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.

In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, plaintiff’s motion papers did not demonstrate plaintiff’s entitlement to have its motion for leave enter a default judgment granted unconditionally.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011