December 13, 2019

Market St. Surgical Ctr. v Autoone Ins. Co. (2019 NY Slip Op 52054(U))

https://www.beynensonlaw.com/case-law/market-st-surgical-ctr-v-autoone-ins-co-2019-ny-slip-op-52054u/

Court
Appellate Term, Second Department
Decided
December 13, 2019
Citation
2019 NY Slip Op 52054(U) · 66 Misc 3d 129(A)
Posture
Default or vacatur
Outcome
Insurer prevailed
Issues
Defaults and vacatur
Cite as
Market St. Surgical Ctr. v Autoone Ins. Co., 66 Misc 3d 129(A), 2019 NY Slip Op 52054(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's motion to vacate default summary judgment was denied on appeal because it failed to show a meritorious defense. Applying CPLR 5015 (a) (1)'s requirements of a reasonable excuse and a meritorious defense to the insurer's motion, the Appellate Term, Second Department, reversed the vacatur order and reinstated the default order dismissing the complaint.

Reported in New York Official Reports at Market St. Surgical Ctr. v Autoone Ins. Co. (2019 NY Slip Op 52054(U))

[*1]
Market St. Surgical Ctr. v Autoone Ins. Co.
2019 NY Slip Op 52054(U) [66 Misc 3d 129(A)]
Decided on December 13, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2019

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


PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1281 K C
Market Street Surgical Center, as Assignee of Kayon Clarke-Mille, Respondent,

against

Autoone Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Benjamin M. Pinczewski, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 22, 2017. The order granted plaintiff’s motion to vacate an order of the same court (Devin P. Cohen, J.) entered January 14, 2016 granting, on default, defendant’s motion for, among other things, summary judgment dismissing the complaint.

ORDERED that the order entered November 22, 2017 is reversed, with $30 costs, plaintiff’s motion to vacate the order entered January 14, 2016 is denied and the order entered January 14, 2016 is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion to vacate an order of that court entered January 14, 2016 granting, on default, defendant’s motion for, among other things, summary judgment dismissing the complaint.

“Pursuant to CPLR 5015 (a) (1), a court may vacate a default in opposing a motion where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense to the motion” (SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 744-745 [2007]). As plaintiff failed to demonstrate that it possessed a meritorious defense to defendant’s motion, plaintiff’s motion to vacate its default should have been denied.

Accordingly, the order entered November 22, 2017 is reversed, plaintiff’s motion to vacate the order entered January 14, 2016 is denied and the order entered January 14, 2016 is reinstated.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

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