Opinion
No. 2015–2278 K C.
05-19-2017
K.O. MEDICAL, P.C., as Assignee of Powell Julian, Appellant, v. AVIS BUDGET GROUP, Respondent.
Law Offices of Melissa Betancourt, for appellant. Rubin, Fiorella & Friedman, LLP (Jason W. Moussourakis, Esq.), for respondent.
Law Offices of Melissa Betancourt, for appellant.
Rubin, Fiorella & Friedman, LLP (Jason W. Moussourakis, Esq.), for respondent.
Present: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered July 1, 2015. The order, insofar as appealed from as limited by the brief, granted defendant's motion to compel plaintiff to accept the late answer to the extent of deeming the answer timely served.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion to compel plaintiff to accept defendant's late answer is denied.
Plaintiff commenced this action to recover assigned first-party no-fault benefits. An affidavit of service stated that the summons and endorsed complaint had been served on defendant on May 30, 2014. On September 11, 2014, defendant served an answer, which plaintiff rejected as untimely. Upon plaintiff's application, a default judgment awarding plaintiff the principal sum of $2,069.76 was entered on October 1, 2014. Defendant moved by order to show cause, returnable on October 31, 2014, to compel plaintiff to accept the answer. Plaintiff opposed the motion. By order entered July 1, 2015, the Civil Court granted defendant's motion to the extent of deeming the answer timely served and ordered defendant to move to vacate the default judgment and for summary judgment dismissing the complaint. As limited by the brief, plaintiff appeals from so much of the order as granted defendant's motion to compel plaintiff to accept the late answer.
Defendant's motion should have been denied, as defendant failed to move to vacate the duly entered default judgment and as the court did not treat defendant's motion as one seeking that relief. In view of the foregoing, we do not consider defendant's proffered excuse for its default.
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to compel plaintiff to accept defendant's late answer is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.