April 27, 2012

East Gun Hill Med., P.C. v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 50782(U))

Headnote

The court considered an appeal from an order denying a motion to vacate a prior order granting the plaintiff's unopposed motion for summary judgment in a case to recover assigned first-party no-fault benefits. The main issue decided was whether the defendant had demonstrated a reasonable excuse for the default and a meritorious defense to the action in seeking to vacate the prior order entered on default. The court held that the defendant's moving papers failed to proffer a reasonable excuse for the default and did not establish a meritorious defense, and therefore affirmed the judgment in favor of the plaintiff for the amount of $3,780.82.

Reported in New York Official Reports at East Gun Hill Med., P.C. v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 50782(U))

East Gun Hill Med., P.C. v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 50782(U)) [*1]

East Gun Hill Med., P.C. v Fiduciary Ins. Co. of Am.

2012 NY Slip Op 50782(U) [35 Misc 3d 136(A)]

Decided on April 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

East Gun Hill Medical, P.C. as Assignee of ANGELINE TOE, Respondent, —
against
Fiduciary Insurance Company of America, Appellant.

Appeals from orders of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered October 7, 2010 and December 20, 2010. The order entered October 7, 2010 granted plaintiff’s unopposed motion for summary judgment. The order entered December 20, 2010 denied defendant’s motion to vacate the order entered October 7, 2010 and, upon such vacatur, to deny plaintiff’s motion for summary judgment. The appeal from the order entered December 20, 2010 is deemed to be from a judgment of the same court entered January 4, 2011 awarding plaintiff the principal sum of $3,780.82 (see CPLR 5512 [a]).

ORDERED that the appeal from the order entered October 7, 2010 is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from, among other things, an order of the Civil Court entered December 20, 2010 which denied defendant’s motion to vacate a prior order entered October 7, 2010 granting plaintiff’s unopposed motion for summary judgment and, upon such vacatur, to deny plaintiff’s motion for summary judgment. We deem the appeal from the order entered December 20, 2010 to be from the judgment which was subsequently entered (see CPLR 5512 [a]).

A defendant seeking to vacate an order entered on default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). In the instant case, defendant’s moving papers failed to proffer, let alone establish, a reasonable excuse for the default. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012