December 13, 2019

Pavlova v Nationwide Ins. (2019 NY Slip Op 52056(U))

Headnote

The court considered whether to vacate an order granting summary judgment on default in a case involving a provider seeking to recover first-party no-fault benefits. The main issue decided was whether the plaintiff had demonstrated a reasonable excuse for the default and the existence of a meritorious defense to the motion, pursuant to CPLR 5015 (a) (1). The holding of the court was that the Civil Court did not improvidently exercise its discretion in finding that the plaintiff had failed to demonstrate a reasonable excuse for its default, and therefore the order denying plaintiff's motion to vacate the previous order was affirmed.

Reported in New York Official Reports at Pavlova v Nationwide Ins. (2019 NY Slip Op 52056(U))

Pavlova v Nationwide Ins. (2019 NY Slip Op 52056(U)) [*1]

Pavlova v Nationwide Ins.

2019 NY Slip Op 52056(U) [66 Misc 3d 130(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2018-1316 K C

Ksenia Pavlova, D.O., as Assignee of Ortiz, Jorge, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 27, 2018. The order denied plaintiff’s motion to vacate an order of the same court entered October 6, 2016 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 27, 2018 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion to vacate the order of that court entered October 6, 2016 granting, on default, defendant’s motion for 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]). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the . . . [c]ourt” (Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612 [2018]). We find that the Civil Court did not improvidently exercise its discretion in finding that plaintiff had failed to demonstrate a reasonable excuse for its default.

Accordingly, the order is affirmed.

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

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