Opinion
No. 2019-1457 K C
07-22-2022
Hand By Hand, PT, P.C., as Assignee of Kevin Kersaint, Appellant, v. New York Central Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Dodge & Monroy, P.C., for respondent (no brief filed).
Unpublished Opinion
MOTION DECISION
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.
Dodge & Monroy, P.C., for respondent (no brief filed).
PRESENT:: THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order granted defendant's motion to vacate a judgment of that court entered April 13, 2018 upon defendant's failure to appear or answer the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to vacate a judgment entered on April 13, 2018 upon defendant's failure to appear or answer the complaint. In support of the motion, defense counsel alleged that an answer had been timely served but it contained a wrong index number, as the year was incorrectly written, which error was due to law office failure. Approximately two weeks later, a second answer, with the correct index number, was served on plaintiff's counsel, after the time to answer had expired. Defendant alleged as a meritorious defense to the action that plaintiff was not entitled to recover on its claim, as the underlying automobile accident was staged. In addition, defendant filed a declaratory judgment action in February 2018 against, among others, plaintiff and its assignor, wherein, by order entered April 19, 2018, plaintiff was enjoined from all no-fault collection/reimbursement actions. In opposition to the motion, plaintiff's counsel alleged that defendant failed to properly serve an answer, as the first answer contained the wrong year in the index number and both answers were served by mail to the wrong address. In reply, defendant failed to explain why the answers were mailed to plaintiff's counsel's prior address. The Civil Court granted defendant's motion.
It is well settled that in order to vacate a default judgment based on excusable default, the defaulting party must demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 A.D.3d 1322, 1323 [2014]). A court may, in the exercise of its discretion, accept law office failure as an excuse (see CPLR 2005). However, counsel "must submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 A.D.2d 553, 554 [2001]) and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 A.D.3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 A.D.2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 A.D.2d 682, 683 [1993]).
In the case at bar, defendant failed to provide a detailed explanation of its default. Defendant's attorney merely stated that the wrong index number reflected on its initial answer was due to law office failure. However, defendant's attorney did not explain why both answers were mailed to plaintiff's counsel's prior address. In view of the foregoing, we need not consider whether defendant established a meritorious defense to the action (see Levi v Levi, 46 A.D.3d 519 [2007]). In any event, contrary to defendant's contention in the Civil Court, this action was not barred based upon the April 19, 2018 order in the Supreme Court declaratory judgment action enjoining plaintiff from proceeding in this action, as that order was entered after the default judgment had been entered herein, and terminated upon the entry of the declaratory judgment on May 20, 2019 and there was no disposition against plaintiff in that judgment (see generally DSD Acupuncture, P.C. v Metlife Auto & Home, 49 Misc.3d 153 [A], 2015 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we find that the Civil Court improvidently exercised its discretion in granting defendant's motion to vacate the default judgment.
Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.
ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.