September 26, 2012

NYU-Hospital for Joint Diseases v Praetorian Ins. Co. (2012 NY Slip Op 06288)

Headnote

The case involves an action to recover no-fault benefits under a policy of automobile insurance. NYU-Hospital for Joint Diseases, as the assignee of Gladys Feliz, appealed from an order granting the defendant's motion to vacate a default judgment and to compel the plaintiff to accept the defendant's answer. The Supreme Court granted the defendant's motion based on the lack of prejudice to the plaintiff from the delay, the lack of willfulness on the part of the defendant, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits. Due to these factors, the defendant's default in appearing or answering the complaint was properly excused according to the court. Overall, the court considered the lack of prejudice to the plaintiff, the lack of willfulness on the part of the defendant, the potentially meritorious defense, and the public policy favoring the resolution of cases on the merits in deciding to affirm the order granting the defendant's motion to vacate the default judgment and to compel the plaintiff to accept the defendant's answer.

Reported in New York Official Reports at NYU-Hospital for Joint Diseases v Praetorian Ins. Co. (2012 NY Slip Op 06288)

NYU-Hospital for Joint Diseases v Praetorian Ins. Co.

2012 NY Slip Op 06288 [98 AD3d 1101]

September 26, 2012

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, October 24, 2012

NYU-Hospital for Joint Diseases, as Assignee of Gladys Feliz, Appellant,
v
Praetorian Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Law Offices of Moira Doherty, P.C., Bethpage, N.Y. (Janice Rosen and Maureen Knodel of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered March 7, 2012, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered December 1, 2011, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the sum of $38,645, and to compel the plaintiff to accept the defendant’s answer.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment and to compel the plaintiff to accept its answer (see CPLR 3012 [d]). In light of the lack of any prejudice to the plaintiff resulting from the minimal delay in serving an answer to the complaint, the lack of willfulness on the part of the defendant, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the defendant’s default in appearing or answering the complaint was properly excused (see CPLR 2004; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d 751, 752 [2012]; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2011]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-20 [1999]). Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.