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Island Life Chiropractic Pain Care, PLLC v. Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Dec 13, 2019
66 Misc. 3d 130 (N.Y. App. Term 2019)

Opinion

2018-1502 K C

12-13-2019

ISLAND LIFE CHIROPRACTIC PAIN CARE, PLLC, as Assignee of Defoe, Ecedro, Appellant, v. MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Barbara Carabell, New York, of counsel), for respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.

Marshall & Marshall, PLLC (Barbara Carabell, New York, of counsel), for respondent.

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for the entry of a default judgment and granted defendant's cross motion to open its default in answering and to compel plaintiff to accept defendant's late answer.

A defendant seeking to open a default in answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co. , 67 NY2d 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 AD2d 494 [2000] ).

Contrary to plaintiff's contention, the Civil Court did not improvidently exercise its discretion in finding that defendant had established a reasonable excuse for not timely answering the complaint. Further, defendant demonstrated that it had a potentially meritorious defense as to whether there was a lack of coverage for plaintiff's claims because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v. Chubb Group of Ins. Cos. , 90 NY2d 195, 199-200 [1997] ).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


Summaries of

Island Life Chiropractic Pain Care, PLLC v. Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Dec 13, 2019
66 Misc. 3d 130 (N.Y. App. Term 2019)
Case details for

Island Life Chiropractic Pain Care, PLLC v. Mvaic

Case Details

Full title:Island Life Chiropractic Pain Care, PLLC, as Assignee of Defoe, Ecedro…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Dec 13, 2019

Citations

66 Misc. 3d 130 (N.Y. App. Term 2019)
2019 N.Y. Slip Op. 52061
120 N.Y.S.3d 560