RANDY SUE MARBER, J.

The Defendant, by Order to Show Cause, moves for an order 1) vacating the judgment granted on default and entered by the clerk on December 12, 2008; 2) extending the Defendant's time to answer the Plaintiff's complaint; and 3) compelling the Plaintiff to accept the Defendant's answer. The Plaintiff opposes the Order to Show Cause.

The Plaintiff, WESTCHESTER MEDICAL CENTER seeks to recover $345,472.88 for medical services provided to its assignor, Jamel Harris. The complaint in this action alleges that the Defendant insured the Plaintiff's assignor under an automobile liability policy which contained a New York no-fault endorsement. On or about April 12, 2008, the Plaintiff's assignor, Jamel Harris, was injured when he hit a tree while driving a 2005 Ford. The Plaintiff alleges that Jamel Harris, as the insured, was a covered person under the automobile policy issued by the Defendant and was entitled to reimbursement from the Defendant for health services rendered by the Plaintiff. The Plaintiff claims that the no-fault benefits for health services provided were duly assigned to the Plaintiff. The Plaintiff claims the Defendant is responsible for the payment of the assignor's health services rendered to him in the amount of $330,925.85, plus interest.

On or about October 27, 2008, the Plaintiff served the Summons and Complaint in this matter upon the Defendant by serving the New York State Insurance Department in Albany. The Defendant alleges that The Insurance Department then sent the Summons and Complaint to Allstate's agent, C.T. Corp., by regular mail, on October 28, 2008 and it was received by C.T. Corp. on November 3, 2008. Subsequently, the Defendant's counsel alleges, C.T. Corp. sent the Summons and Complaint to Allstate's offices in Hauppauge, New York, by overnight mail.

In an affidavit sworn to on January 23, 2009, Charles Jaekle, a Front Line Performance Leader employed by the Defendant, alleges that the Summons and Complaint in this action was then misindexed by an employee who "did not realize the time sensitive nature of the documents". As a result, the Summons and Complaint was not received by the appropriate office to prepare responsive pleadings until January 5, 2009.

The default judgment had already been entered on December 12, 2008. The Defendant claims that the delay in answering the Summons and Complaint was not willful or deliberate nor was it extensive and the Defendant acted quickly to fix the situation once it was discovered.

The Plaintiff's counsel opposes the motion and argues that the Defendant fails to provide a reasonable excuse for the default. The Plaintiff's counsel argues that the Defendant has failed to substantiate its allegations and that same are "vague and unsubstantiated" explanations which do not rise to the level of reasonable excuse. The Plaintiff's counsel cites Stoltz v. Playquest Theater Company, 257 AD2d 758, 683 NYS2d 339 (3d Dept. 1999) to support his argument that the Defendant's failure to understand the need to respond in a timely fashion to the summons and complaint did not constitute excusable neglect. Such reliance is misguided as the facts in the Stoltz matter are distinguishable from the facts in the instant case. In Stoltz, the defendant sought legal advise upon being served with the summons and chose not to respond. Additionally, the Defendant in Stoltz did not attempt to vacate the default until collection proceedings were undertaken more than a year after entry of the default and the defendant ceased operations and vacated its business premises.

The Plaintiff's counsel further relies on Harcztark v. Drive Variety, Inc. , 21 AD3d 876, 800 NYS2d 613 (2d Dept. 2005), specifically stating in his Affirmation, dated February 17, 2009, that the Court refused to vacate a default of two months based upon "insurance company delay". He further cites Harcztark quoting the Appellate Court as ruling, "This excuse has been rejected in this court time and again". The Plaintiff's counsel has misrepresented the ruling of the majority in the Harcztark matter. The Court in Harcztark rejected the premise that delay by an insurance company may never constitute all or part of a reasonable excuse by and insured for a default. The Court went on to say that determining whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. ( id at 877).

In order to vacate a default, the defaulting party must demonstrate that they had a reasonable excuse for the delay, that they have provided a meritorious defense, that the default was not willful, and that the plaintiff will not be prejudiced. Lichtman v. Sears, Roebuck Co., 236 AD2d 373, 653 NYS2d 25 (2d Dept. 1997). A default by a defendant should be vacated where there is "minimal prejudice caused by the defendant's short delay in answering, as well as the public policy in favor of resolving the cases on the merits." Classie v. Stratton Oakmont, Inc., 236 AD2d 505, 653 NYS2d 377 (2d Dep't 1997). Furthermore, "it is within the sound discretion of the Court to determine whether the proffered excuse and the statement of the merits are sufficient." Navarro v. A. Trenkman Estate, Inc., 279 AD2d 257 719 NYS2d 34 (1st Dept. 2001) citing Mediavilla v. Gurman, 272 AD2d 146, 707 NYS2d 432 (1st Dept. 2001). The court also has discretion to consider whether the defendant acted promptly in curing the default without delay or prejudice to the plaintiff. Statewide Ins. Co. v. Bradham, 301 AD2d 606, 753 NYS2d 861, (2d Dept. 2003) citing Matter of Statewide Ins. Co. v. Bradham, 301 AD2d 606, 753 NYS2d 861 (2d Dept. 2003).

The Plaintiff's counsel argues that the Defendant has failed to submit an affidavit of merit which demonstrates a meritorious defense to the action. Plaintiff's counsel argues that the Defendant's attorney does not have personal knowledge of the facts and the submission of her affirmation alone is insufficient to vacate a default judgment. In response to this argument, the Defendant's counsel points out that an attorney's affirmation can be submitted in lieu of an affidavit of merit if all the material allegations of the pleading are within the attorney's personal knowledge. Additionally, the Defendant's attorney further points out that her affirmation is supported by the affidavit of Charles Jaekle, who has personal knowledge of the facts. The Defendant's attorney also alleges that she has personal knowledge that the Plaintiff's assignor is not covered under the subject insurance policy based on the subject insurance policy itself.

In support of the requirement that there be a meritorious defense, the Defendant argues that the Plaintiff's assignor was not covered by the Defendant's insurance policy and that there exists no contractual relationship between the Plaintiff and the Defendant and that the Defendant has no obligation to pay the Plaintiff's claims. The Defendant's attorney asserts that the vehicle the Plaintiff's assignor was driving on the date of the accident, a 2005 Ford, was not a covered vehicle under the subject policy. The Defendant's attorney asserts that the subject policy covers a 1999 Nissan Maxima and a 1997 Acura. Additionally, the Defendant's attorney asserts that the insurance policy issued to the Plaintiff's assignor's grandmother, Esther Harris, lists her address as 36 Peter Way, Kiamesha, New York whereas the police report for the accident involving Jamel Harris lists his address as 1120 Clay Avenue, Apt. 4A, Bronx, New York. As such, the Defendant's attorney asserts that the Plaintiff's assignor did not reside in the insured's household and is not an "eligible injured person" under the policy.

The Plaintiff's attorney argues that the defense to the action that the Defendant raises is precluded due to Allstate's failure to have issued a Denial of Claim. In response to this argument, the Defendant's attorney asserts that the insurer's failure to timely disclaim coverage does not preclude it from later denying liability on the ground that the insurance agreement itself does not cover the particular automobile or person. In support of this proposition, the Defendant's counsel cites Zappone v. Home Ins. Co., 55 NY2d 131, 138 (1982). Additionally, the Defendant's counsel points out that at no time did the Defendant ever admit that it provided coverage for the subject vehicle. The affirmation submitted by the Defendant's counsel, dated January 26, 2009, in support of the Order to Show Cause specifically states in paragraphs 14 and 15 that the Plaintiff's assignor drove a 2005 Ford and that the policy insured a 1999 Nissan Maxima and a 1997 Acura. The Defendant's counsel argues that the Plaintiff has failed to put forth any evidence to show that the Plaintiff's assignor was an eligible injured person covered under the subject policy.

This Court, in its discretion, accepts the Defendant's explanation for the delay incurred in answering the Summons and Complaint in this matter as an excusable delay. Additionally, the Defendant has provided a meritorious defense and sufficient evidence that the default was not willful. The delay was short and the Plaintiff will not be prejudiced by allowing the Defendant to interpose an answer.

Accordingly, the Defendant's motion to vacate the default judgment is GRANTED. The Defendant's proposed answer is deemed served and the preliminary conference in this matter shall be held on April 21, 2009 at 9:30 a.m. at the courthouse lower level.

This decision constitutes the order of the court.