May 3, 2019

Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2019 NY Slip Op 50685(U))

Headnote

The court considered the fact that the plaintiff had commenced an action to recover first-party no-fault benefits and that the defendant was served with the complaint but failed to answer. The main issue decided was whether the defendant had established a reasonable excuse for its default in not answering the complaint. The holding of the case was that upon a review of the record, the court found no merit to the plaintiff's contention and affirmed the order granting the defendant's motion to vacate the default judgment and deeming the defendant's answer to be timely. Therefore, the defendant's excuse for its default was deemed reasonable and the order was affirmed.

Reported in New York Official Reports at Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2019 NY Slip Op 50685(U))

Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2019 NY Slip Op 50685(U)) [*1]

Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am.

2019 NY Slip Op 50685(U) [63 Misc 3d 146(A)]

Decided on May 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-108 K C

Prompt Medical Supply, Inc., as Assignee of Gwendolyn Fox, Appellant,
against
Nationwide Affinity Ins. Co. of America, Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Kevin J. Philbin (Ivy Cherian of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 8, 2016. The order granted defendant’s motion to vacate a judgment of that court entered June 29, 2019 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is affirmed, with $25 costs.

Plaintiff commenced this action on April 9, 2016 to recover assigned first-party no-fault benefits. Defendant was served with the complaint on April 19, 2016, and plaintiff filed proof of service of the complaint on April 25, 2016. On May 30, 2016, plaintiff applied to the clerk for a default judgment, pursuant to CPLR 3215 (a). On May 31, 2016, defendant served its answer. A default judgment was entered on June 29, 2016. Plaintiff appeals from an order entered September 8, 2016 granting defendant’s motion to vacate the default judgment and deeming defendant’s answer to be timely.

Upon a review of the record, we find no merit to plaintiff’s sole contention on appeal that defendant failed to establish a reasonable excuse for its default (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745 [2018]; Estrada v Selman, 130 AD3d 562 [*2][2015]). Consequently, we find no reason to disturb the order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019