May 14, 2021

Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))

Headnote

The court considered an appeal from an order of the Civil Court that granted the defendant's motion to vacate a judgment entered upon the defendant's failure to appear or answer the complaint, and to compel the plaintiff to accept the defendant's answer. The main issue decided was whether the defendant, in seeking to vacate the default and compel the plaintiff to accept an untimely answer, had shown a reasonable excuse for the default and the existence of a potentially meritorious defense. The holding of the case was that since the defendant failed to demonstrate both a reasonable excuse for its default and a meritorious defense, the defendant's motion to vacate the judgment and compel the plaintiff to accept the answer was denied. Therefore, the order granting the defendant's motion was reversed.

Reported in New York Official Reports at Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))

Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U)) [*1]

Yumi Acupuncture, P.C. v Allstate Ins. Co.

2021 NY Slip Op 50432(U) [71 Misc 3d 136(A)]

Decided on May 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 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
2019-167 K C

Yumi Acupuncture, P.C., as Assignee of Russell Harrod, Appellant,
against
Allstate Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Offices of James F. Sullivan, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 11, 2019. The order granted defendant’s motion to vacate a judgment of that court entered October 4, 2017 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order entered January 11, 2019 is reversed, with $30 costs, and defendant’s motion to vacate the judgment entered October 4, 2017 and to compel plaintiff to accept defendant’s answer is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered January 11, 2019 granting defendant’s motion to vacate a judgment of that court entered October 4, 2017 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

“A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]). As defendant failed to demonstrate that it possessed both a reasonable excuse for its default and a meritorious defense, defendant’s motion to vacate its default should have been denied.

Accordingly, the order entered January 11, 2019 is reversed and defendant’s motion to vacate the judgment entered October 4, 2017 and to compel plaintiff to accept defendant’s answer is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021