September 17, 2014

New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)

https://www.beynensonlaw.com/case-law/new-york-hosp-med-ctr-of-queens-v-nationwide-mut-ins-co-2014-nyslip-op-06188/

Court
Appellate Division, Second Department
Decided
September 17, 2014
Citation
2014 NY Slip Op 06188 · 120 AD3d 1322
Posture
Default or vacatur
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Defaults and vacatur
Cite as
New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322 (2d Dept 2014)

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 insurer's clerical-oversight affidavit and potentially meritorious defense justified vacating its default judgment. The hospital had obtained a clerk's judgment after the insurer failed to appear or answer. The Appellate Division, Second Department, affirmed the order vacating that judgment, extending the insurer's time to appear, and compelling acceptance of its late notice of appearance. Under CPLR 5015 (a) (1), the insurer supplied a reasonable excuse through an employee's affidavit describing delayed forwarding of the summons with notice to counsel. The court also relied on the potentially meritorious defense, lack of willfulness, absence of prejudice, and preference for resolving cases on the merits in sustaining relief under CPLR 3012 (d).

Reported in New York Official Reports at New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)

New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co.
2014 NY Slip Op 06188 [120 AD3d 1322]
September 17, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, October 29, 2014

[*1]

 New York Hospital Medical Center of Queens, as Assignee of Jose Tacuri, Appellant,
v
Nationwide Mutual Insurance Company, Respondent.

Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Mickei Milton of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), dated January 13, 2014, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 25, 2013, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the principal sum of $25,621.20, and pursuant to CPLR 3012 (d) to extend its time to appear and to compel the plaintiff to accept its late notice of appearance.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696 [2011]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 AD3d 791, 792 [2011]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]).

Here, the defendant established a reasonable excuse through an employee’s affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons with notice to its attorney (see Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 696; Perez v Travco Ins. Co., 44 AD3d 738, 739 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Furthermore, the defendant demonstrated a potentially meritorious defense to the action. Accordingly, in light of the foregoing, as well as the public policy favoring the resolution of cases on the merits, the defendant’s lack of willfulness, and the absence of any prejudice to the plaintiff, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment, to extend its time to appear, and to compel the plaintiff to accept its late notice of appearance (see CPLR 3012 [d]; NYU-Hospital for Joint Diseases v Praetorian Ins. Co., 98 AD3d 1101, 1102 [2012]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 697). Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.

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