February 6, 2008
Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 50277(U))
Headnote
Reported in New York Official Reports at Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 50277(U))
| Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2008 NY Slip Op 50277(U) [18 Misc 3d 136(A)] |
| Decided on February 6, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P. and RIOS, J.
2006-910 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered March 2, 2006. The order granted defendant’s motion to vacate a default judgment.
Order reversed without costs and defendant’s motion to vacate a default judgment denied.
In order to vacate the default judgment entered in this action to recover assigned first-party
no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a), both a
reasonable excuse for the default and a meritorious defense (see
Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A
motion to vacate a default judgment is addressed to the sound discretion of the motion court
(see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination
will generally not be disturbed unless it can be shown that the court improvidently exercised its
discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650
[2001]). Despite the strong public policy in favor of resolution of cases on the merits, upon a
review of the record, we are of the opinion that the court below improvidently exercised its
discretion in granting defendant’s motion to vacate the default judgment.
Defendant’s conclusory allegations that it possessed a meritorious defense were insufficient to warrant vacatur of the default judgment since defendant failed to show that its [*2]proffered defenses were set forth in timely denial of claim forms such that defendant is not precluded from interposing its defenses (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). The documentary proof annexed to defendant’s opposing papers was insufficient to give rise to a presumption that the denial of claim forms were timely mailed pursuant to a standard office practice or procedure (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51343[U] [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that it possessed a reasonable excuse for its failure to timely serve its answer. Defendant’s claims representative merely assumed that defendant’s time to serve its answer was enlarged because she faxed a proposed stipulation to plaintiff granting defendant an enlargement of its time to answer. The claims representative never spoke to plaintiff’s counsel about such an extension, and she never received any indication that plaintiff agreed to extend defendant’s time to answer.
In light of the foregoing, the order is reversed and defendant’s motion to vacate the default
judgment is denied.
Weston Patterson, J.P. and Rios, J., concur.
Decision Date: February 06, 2008