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.