Opinion
2014-1299 K C
02-23-2016
Gaetane Physical Therapy, P.C., as Assignee of ERROL McPHERSON, Appellant, v. 21st Century North America Ins. Co., Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 27, 2014. The order denied plaintiff's motion to vacate a prior order of the same court (Pamela L. Fisher, J.) entered November 21, 2012, which granted, on default, defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order entered March 27, 2014 is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity for the services at issue. Although the parties entered into a stipulation adjourning defendant's motion and setting forth dates for the submission of opposition and reply papers, plaintiff did not oppose defendant's motion. By order entered November 21, 2012, the Civil Court granted defendant's motion "with no opposition" and dismissed the complaint with prejudice. Defendant served the order with notice of entry on November 29, 2012. Thereafter, on June 7, 2013, plaintiff, asserting law office failure, moved to vacate the November 21, 2012 order, and, upon vacatur, to deny defendant's motion for summary judgment. Defendant opposed plaintiff's motion. Plaintiff appeals from an order of the Civil Court entered March 27, 2014 denying plaintiff's motion.
The Civil Court did not improvidently exercise its discretion in denying plaintiff's motion, in view of the almost seven-month delay in moving to vacate the order and plaintiff's failure to establish a reasonable excuse for its default (see CPLR 5015 [a]). A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a "detailed and credible" explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Queens-Roosevelt Med. Rehab., P.C. v Alea Care of Gab Robins Ins. Co., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff's claim of law office failure was conclusory and unsubstantiated, and, under the circumstances presented, did not constitute a reasonable excuse for the default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90; Queens-Roosevelt Med. Rehab., P.C., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U]). Consequently, it is unnecessary to determine whether plaintiff demonstrated the existence of a potentially meritorious opposition to defendant's summary judgment motion ( see Herrera, 100 AD3d at 963; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: February 23, 2016