Opinion
2021-50772
07-30-2021
Ahava Medical Diagnostic, P.C., as Assignee of Amiri, Behzad, Respondent, v. Hertz Co., Appellant.
Rubin, Fiorella, Friedman & Mercante, LLP (Sarah V. Cohenson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Unpublished Opinion
Rubin, Fiorella, Friedman & Mercante, LLP (Sarah V. Cohenson of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 8, 2019. The order denied defendant's motion to vacate a judgment of that court entered November 1, 2018 upon defendant's failure to appear or answer the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, it is undisputed that defendant failed to appear or answer the complaint. The Civil Court granted plaintiff's motion for a default judgment, and a default judgment was entered on November 1, 2018. Thereafter, defendant moved, insofar as is relevant to this appeal, to vacate the default judgment, and plaintiff opposed the motion. By order entered November 8, 2019, the Civil Court denied defendant's motion.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986]). While defendant argues on appeal that it demonstrated the existence of a potentially meritorious defense, we need not reach that issue because, as plaintiff argues, the papers submitted by defendant's claim representative in support of the motion did not provide a sufficiently detailed explanation of the inadvertent office failure that allegedly caused the default (see Auburn Realty, LLC v Surujdyal, 183 A.D.3d 682 [2020]; Herrera v MTA Bus Co., 100 A.D.3d 962 [2012]). Indeed, absent from defendant's papers was an affidavit by the person responsible for the office failure or any explanation as to why such affidavit was not provided ( see Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense to the action (see Wells Fargo Bank, N.A. v Syed, 160 A.D.3d 914 [2018]; Scott v Ward,130 A.D.3d 903 [2015]; Vardaros v Zapas, 105 A.D.3d 1037 [2013]).
Accordingly, the order is affirmed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.