Opinion
2021-50576 Ind. 2020-164 K C
06-21-2021
Hands On Physical Therapy Care MVAIC, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Marshall & Marshall, PLLC (Craig B. Marshall and Jeffrey Kadushin of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant.
Marshall & Marshall, PLLC (Craig B. Marshall and Jeffrey Kadushin 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 (Robin Kelly Sheares, J.), entered August 8, 2019. The order granted the branch of defendant's motion seeking to vacate a judgment entered upon defendant's failure to appear or answer the complaint.
ORDERED that the order is affirmed, with $25 costs.
Plaintiff commenced this action on October 29, 2018 to recover assigned first-party no-fault benefits. It is undisputed that defendant was served with the summons and complaint on November 21, 2018, and that, on January 4, 2019, it served its answer, which plaintiff rejected as untimely. On January 8, 2019, plaintiff applied to the clerk for a default judgment, which was entered on February 7, 2019. Plaintiff appeals from an order of the Civil Court entered granting the branch of defendant's motion seeking to vacate the default judgment.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and 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]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 A.D.2d 494 [2000]). Contrary to plaintiff's contention, defendant established a reasonable excuse for its default. As plaintiff raises no issue with respect to the implicit determination of the Civil Court that defendant demonstrated that it has a potentially meritorious defense to the action, we find no reason to disturb the order.
Accordingly, the order is affirmed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.