August 19, 2008

Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51755(U))

Headnote

The relevant facts the court considered were that the defendant, an insurance company, sought to vacate a default judgment in a case to recover assigned first-party no-fault benefits. The defendant was required to establish both a reasonable excuse for the default and a meritorious defense. The court found that there was no support in the record for the determination that the defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by the defendant's attorney, who did not allege personal knowledge of his assertions. Therefore, the court reversed the order granting the defendant's motion to vacate the default judgment and denied the motion. The holding of the case was that the court found the defendant did not have a reasonable excuse for the default and therefore the motion to vacate the default judgment was denied.

Reported in New York Official Reports at Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51755(U))

Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51755(U)) [*1]

Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51755(U) [20 Misc 3d 143(A)]

Decided on August 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1960 K C.

Neurology and Acupuncture Service, P.C. a/a/o MARTHA GAVILANES, ZULAN PIEDRAHITA and HERNAN MALDOMADO, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense
(see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We find that there is no support in the record for the determination that defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by defendant’s attorney, who did not allege personal knowledge of his assertions. Consequently, the court improvidently exercised its discretion in granting defendant’s motion. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.