Opinion
No. 570856/11.
2012-04-19
ROSSI & GROSSI, M.D., P.C., Plaintiff–Appellant, v. James STUKES, Defendant–Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered October 26, 2011, which granted defendant's motion to vacate a default judgment.
Present: HUNTER, JR., J.P., SHULMAN, TORRES, JJ.
PER CURIAM.
Order (Peter H. Moulton, J.) entered October 26, 2011, reversed, without costs, motion denied, default judgment reinstated, and matter remanded for a traverse hearing.
The defendant's sworn, nonconclusory denial of service was sufficient to raise a factual issue as to the validity of service, requiring a traverse hearing ( see NYCTL 1998–1 Trust v. Rabinowitz, 7 A.D.3d 459 [2004] ). In the event the traverse is overruled, defendant's vacatur motion must be denied, since his conclusory allegations that an (unnamed) insurance carrier “should have paid” for the medical services sued for was insufficient to establish a meritorious defense ( see Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650 [1983] ).