May 15, 2007

Westchester Med. Ctr. v AIU Ins. Co. (2007 NY Slip Op 04285)

Headnote

The relevant facts in this case involve an action to recover no-fault insurance medical benefits, in which the plaintiff appealed from an order in the Supreme Court, Nassau County. The order granted the defendant's motion to vacate a judgment entered upon its default in answering, and denied the plaintiff's motion to punish the defendant for contempt. The main issue decided was whether the Supreme Court properly exercised its discretion in granting the defendant's motion to vacate the default judgment pursuant to CPLR 317, and whether it properly denied the plaintiff's motion to punish the defendant for contempt. The holding of the court was that the Supreme Court did exercise its discretion properly in granting the defendant's motion to vacate the default judgment pursuant to CPLR 317 and properly denied the plaintiff's motion to punish the defendant for contempt. Therefore, the order was affirmed with costs.

Reported in New York Official Reports at Westchester Med. Ctr. v AIU Ins. Co. (2007 NY Slip Op 04285)

Westchester Med. Ctr. v AIU Ins. Co.

2007 NY Slip Op 04285 [40 AD3d 847]

May 15, 2007

Appellate Division, Second Department

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

As corrected through Wednesday, July 11, 2007

Westchester Medical Center, Appellant,
v
AIU Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Bryan M. Rothenberg, Hicksville, N.Y. (Fiedelman & McGaw [Ross P. Masler] of counsel), for respondent.

In an action to recover no-fault insurance medical benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated November 20, 2006, which granted that branch of the defendant’s motion which was pursuant to CPLR 317 to vacate a judgment of the same court entered March 8, 2005, upon its default in answering, and denied its motion to punish the defendant for contempt of court based on its failure to respond to an information subpoena.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to vacate the default judgment pursuant to CPLR 317 (see CPLR 317; Franklin v 172 Aububon Corp., 32 AD3d 454, 455 [2006]; Rios v Starrett City, Inc., 31 AD3d 418 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). The Supreme Court properly denied the plaintiff’s motion to punish the defendant for contempt. Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.