Opinion
No. 2023-1068 K C
09-27-2024
Dr. Bruce Jacobson, D.C., as Assignee of Shirleena Mack, Dr. Bruce Jacobson, D.C., as Assignee of Jene Waldron, Appellant, v. State Farm Fire and Casualty Company, Respondent.
Zara Javakov, Esq., P.C. (Damin J. Toell of counsel), for appellant. McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for respondent.
Unpublished Opinion
Zara Javakov, Esq., P.C. (Damin J. Toell of counsel), for appellant.
McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for respondent.
PRESENT:: CHEREÉ A. BUGGS, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated February 1, 2023. The order granted defendant's motion to vacate a judgment of the same court entered March 11, 2019 upon defendant's failure to appear or answer the complaint and to compel plaintiff to accept defendant's answer.
ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment entered March 11, 2019 and to compel plaintiff to accept defendant's answer is denied.
In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on March 11, 2019 upon defendant's failure to appear or answer the complaint. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant's answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated February 1, 2023, the Civil Court granted defendant's motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.
"A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 A.D.3d 698 [2020]; US Bank N.A. v Dedomenico, 162 A.D.3d 962, 964 [2018])" (JE & MB Homes, LLC v U.S. Bank N.A., 189 A.D.3d 1195, 1196 [2020]). A claim representative employed by defendant submitted an affidavit stating that while she believed the summons and complaint had been sent to counsel via email, it was subsequently determined that the email was not properly sent to counsel due to a clerical error. However, defendant failed to proffer an affidavit from someone with personal knowledge setting forth what the clerical error consisted of, who made the error, who discovered the error, and when the error was discovered. Consequently, defendant's conclusory and unsubstantiated assertion that its default was due to a clerical error was insufficient to qualify as a reasonable excuse (see A.B. Med. Servs. PLLC v Allstate Ins. Co.,11 Misc.3d 128[A], 2006 NY Slip Op 50243[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 A.D.3d 1229, 1230 [2022]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 81 Misc.3d 141 [A], 2023 NY Slip Op 51471[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2023]).
Accordingly, the order is reversed and defendant's motion to vacate the default judgment entered March 11, 2019 and to compel plaintiff to accept defendant's answer is denied.
BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.