July 24, 2007

St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 06227)

Headnote

St. Vincent's Hospital & Medical Center sought to recover no-fault medical payments from AllState Insurance Company. AllState appealed an order by the Supreme Court, Nassau County, which denied its motion to vacate a clerk's judgment entered upon its failure to appear or answer, and for leave to serve a late answer. The defendant claimed a reasonable excuse for its delay in appearing, and a potentially meritorious defense, and the Appellate Division concluded that the Supreme Court had improvidently exercised its discretion in denying the motion. The Appellate Division reversed the order, allowing the defendant's motion, vacating the clerk's judgment, and deeming the answer served on the plaintiff. The Supreme Court's decision was reversed and the defendant's motion to vacate the judgment and serve a late answer was granted.

Reported in New York Official Reports at St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 06227)

St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co.

2007 NY Slip Op 06227 [42 AD3d 525]

July 24, 2007

Appellate Division, Second Department

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

As corrected through Wednesday, September 12, 2007

St. Vincent’s Hospital & Medical Center, as Assignee of Rockeya Begum, Respondent,
v
Allstate Insurance Company, Appellant.

—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Martha S. Henley of counsel), for appellant.

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

In an action to recover no-fault medical payments, the defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated November 3, 2005, which denied its motion to vacate a clerk’s judgment of the same court entered May 11, 2005, upon its failure to appear or answer, and for leave to serve a late answer.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, the clerk’s judgment is vacated, and the answer annexed to the defendant’s motion papers is deemed served on the plaintiff.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a “reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action” (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]). The defendant demonstrated a reasonable excuse for its failure to timely appear and answer the complaint and a potentially meritorious defense. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion to vacate the clerk’s judgment entered upon its failure to appear or answer, and for leave to serve a late answer.[*2]

Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, dated November 3, 2005, to strike portions of the appellant’s brief on the ground that those portions of the brief refer to matter dehors the record. By decision and order on motion of this Court dated June 30, 2006, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is

Ordered that the motion is denied. Crane, J.P., Spolzino, Florio and Covello, JJ., concur.