July 10, 2008

Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51551(U))

Headnote

The court considered the fact that the plaintiff, a health care provider, obtained a default judgment in the action to recover assigned first-party no-fault benefits. The defendant's motion to vacate the default judgment was denied on the grounds that their papers did not establish the existence of a meritorious defense. The main issue decided was whether the defendant established that it possessed a meritorious defense to the action. The holding of the case was that since the affidavit executed by the defendant's special investigator "suffice[d] to [demonstrate] issues as to who really operated and controlled plaintiff," the defendant established the existence of a meritorious defense to the action. Therefore, the court reversed the order and granted the defendant's motion.

Reported in New York Official Reports at Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51551(U))

Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51551(U)) [*1]

Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51551(U) [20 Misc 3d 137(A)]

Decided on July 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-938 K C.

Midwood Acupuncture, P.C. a/a/o CHRISTINA A. HENDERSON, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 2006. The order denied defendant’s motion to vacate the default judgment entered against it and to extend its time to appear.

Order reversed without costs and defendant’s motion to vacate the default judgment entered against it and to extend its time to appear granted. Defendant shall serve and file its answer within 20 days of the date of the order hereon.

Plaintiff, a health care provider, obtained a default judgment in this action to recover assigned first-party no-fault benefits. Defendant’s motion to, inter alia, vacate the default judgment was denied on the ground that defendant’s papers did not establish the existence of a meritorious defense. This appeal by defendant ensued.

The sole issue raised on appeal is whether defendant established that it possessed a meritorious defense to the instant action. In our opinion, since the affidavit executed by defendant’s special investigator, which was submitted in support of defendant’s motion, “suffice[d] to [demonstrate] issues as to who really operated and controlled plaintiff” (Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052 [App Term, 2d & 11th Jud Dists 2007]), defendant established the existence of a meritorious defense to the action. Accordingly, the order is reversed and defendant’s motion granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008