July 2, 2021

Sure Way NY, Inc. v Farm Bur. Mut. Ins. Co. (2021 NY Slip Op 50632(U))

Headnote

The court considered the fact that defendant had failed to appear or answer the complaint in this action by a provider to recover assigned first-party no-fault benefits. The main issue decided was whether the denial of defendant's motion to vacate a judgment of the lower court was appropriate. The holding of the court was that the order denying defendant's motion to vacate the default judgment was reversed, and defendant's motion to vacate the default judgment was granted. This decision was based on the reasoning stated in another case with a similar issue.

Reported in New York Official Reports at Sure Way NY, Inc. v Farm Bur. Mut. Ins. Co. (2021 NY Slip Op 50632(U))

Sure Way NY, Inc. v Farm Bur. Mut. Ins. Co. (2021 NY Slip Op 50632(U)) [*1]

Sure Way NY, Inc. v Farm Bur. Mut. Ins. Co.

2021 NY Slip Op 50632(U) [72 Misc 3d 130(A)]

Decided on July 2, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2018-1191 K C

Sure Way NY, Inc., as Assignee of Mims, Nathaniel, Respondent,
against
Farm Bureau Mutual Ins. Co., Appellant.

Jacobson & Schwartz, LLP (Gary R. Schwartz of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 25, 2018. The order denied defendant’s motion to vacate a judgment of that court entered April 2, 2018 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to vacate a judgment of that court entered upon defendant’s failure to appear or answer the complaint.

For the reasons stated in Daily Med. Equip. Distrib. Ctr., Inc., as Assignee of Balderrna, David v American Ind. Ins. Co. (___ Misc 3d ___, 2021 NY Slip Op ______ [appeal No. 2019-341 K C], decided herewith), the order is reversed and defendant’s motion to vacate the default judgment is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021