January 12, 2018

Zayas Physical Therapy, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50038(U))

Headnote

The main issue in this case was whether the defendant, Auto One Ins. Co., had grounds sufficient to set aside a stipulation that they had entered into with the plaintiff, Zayas Physical Therapy, P.C. The defendant had failed to submit written opposition to the plaintiff's motion for summary judgment, and as a result, the Civil Court had granted the motion upon the consent of both parties and entered a judgment in favor of the plaintiff. The defendant then moved to vacate the order and judgment, arguing that they had a reasonable excuse for their default and a meritorious defense to the action. However, the Civil Court denied the defendant's motion on the ground that they had failed to offer a reasonable excuse for their failure to submit written opposition to the plaintiff's motion for summary judgment. The Appellate Term, Second Department affirmed the decision, holding that the defendant had failed to make a sufficient showing to set aside the stipulation and judgment.

Reported in New York Official Reports at Zayas Physical Therapy, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50038(U))

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

Zayas Physical Therapy, P.C., as Assignee of Maria Perez, Respondent,
against
Auto One Ins. Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for the respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate (1) an order of that court entered January 16, 2014 granting, upon the consent of the parties, plaintiff’s motion for summary judgment, and (2) a judgment of that court, entered February 20, 2014 pursuant to the January 16, 2014 order, awarding plaintiff the principal sum of $1,246.50, and, upon such vacatur, in effect, to deny plaintiff’s motion and for summary judgment dismissing the complaint.

ORDERED that the order entered May 14, 2015 is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant did not submit written opposition to the motion. By order entered January 16, 2014, the Civil Court granted the motion, stating that “[b]oth sides agreed [that plaintiff may enter judgment] and will not appeal the order.” A judgment in the principal sum of $1,246.50 was entered pursuant to that order on February 20, 2014. Thereafter, defendant moved to vacate the January 16, 2014 order and the judgment entered pursuant thereto, arguing that it had a reasonable excuse of law office failure for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, in effect, to deny plaintiff’s motion and for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant’s motion on the ground that defendant had failed to offer a reasonable excuse for its failure to submit written opposition to plaintiff’s motion for summary judgment.

As the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Healthworx Med., P.C. v Auto One Ins. Co., 55 Misc 3d 140[A], 2017 NY Slip Op 50559[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Hallock v State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143, 150 [1971]; CCU, LLC v Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing.

Accordingly, the order entered May 14, 2015 is affirmed.

ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2018