January 10, 2006

Hospital for Joint Diseases v Dollar Rent A Car (2006 NY Slip Op 00141)

Headnote

Hospital plaintiffs sued a rental car company for no-fault medical payments and had obtained summary judgment on the defendant's default in opposing the motion. The Supreme Court vacated that order on the defendant's motion. The Appellate Division affirmed, relying on the defendant's reasonable excuse for the default, the absence of willfulness and prejudice, and the existence of a possible meritorious defense. It held that the Supreme Court providently exercised its discretion under CPLR 5015(a).

Reported in New York Official Reports at Hospital for Joint Diseases v Dollar Rent A Car (2006 NY Slip Op 00141)

Hospital for Joint Diseases v Dollar Rent A Car
2006 NY Slip Op 00141 [25 AD3d 534]
January 10, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 22, 2006


Hospital for Joint Diseases, as Assignee of Marla Sandler, et al., Appellants,
v
Dollar Rent A Car, Respondent.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated December 14, 2004, as granted that branch of the defendant’s motion which was to vacate a prior order of the same court dated July 29, 2004, granting their motion for summary judgment upon the defendant’s default in opposing the motion.

Ordered that the order is affirmed insofar as appealed from, with costs.

Based on, inter alia, (a) the reasonable excuse presented by the defendant for its default in opposing the plaintiffs’ motion for summary judgment, including the absence of willfulness and the lack of prejudice to the plaintiffs, and (b) the existence of a possible meritorious defense, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to vacate the order dated July 29, 2004, granting the plaintiffs’ unopposed motion for summary judgment (see CPLR 5015 [a]; see Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574 [2004]; Presbyterian Hosp. in City of N.Y. v Empire Ins. Co., 220 AD2d 733, 734 [1995]). Schmidt, J.P., Mastro, Spolzino and Lunn, JJ., concur.