Opinion
2023-513 K C
12-22-2023
ART OF HEALING MEDICINE, P.C., as Assignee of Ketevan Ramishvili and Henadz Viliant, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment entered May 3, 2022 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, a judgment was entered on May 3, 2022 upon defendant's failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were served upon a named individual known by the process server to be an employee of defendant authorized to accept service of process. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant's answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated March 8, 2023, the Civil Court granted defendant's motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.
"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] ).
In support of its contention that it possessed a reasonable excuse for its default, defendant submitted an affidavit from a claims representative who averred that either the summons and complaint were not received, based on the absence of a record documenting the receipt of this document in defendant's electronic system, or that the summons and complaint were not processed due to a reduction in the number of personnel in defendant's office, where service allegedly occurred, due to the COVID-19 pandemic. Defendant's claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant neither submitted an affidavit from the individual who had been named in the process server's affidavit of service as having received service nor explained why such affidavit could not be provided (see Renelique v Allstate Ins. Co. , 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; 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]; Aminov v Allstate Ins. Co. , 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Further, defendant's assertion that a COVID-19-related staff reduction may have resulted in the failure to process the summons and complaint was conclusory and unsubstantiated, and, therefore, is also insufficient to qualify as a reasonable excuse (see V. v Leo , 219 AD3d 961, 962 [2023] ; Wells Fargo Bank, N.A. v Krauss , 128 AD3d 813, 814 [2015] ; Ahava Med. Diagnostic, P.C. v Hertz Co. , 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp. , 208 AD3d 1229, 1230 [2022] ; Ahava Med. Diagnostic, P.C. v Hertz Co. , 2021 NY Slip Op 50772[U], *1).
Accordingly, the order is reversed and defendant's motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant's answer is denied.
HOM, J.P., TOUSSAINT and BUGGS, JJ., concur.