Opinion
Index No. 605006/22 Motion Seq. Nos. 001 002
06-15-2023
LM GENERAL INSURANCE COMPANY, Plaintiff, v. JEAN M. MOISE, JAMES JOSEPH, JUNIOR ALADIN a/k/a JUNIOR ALADAIN, MARVEL CHALORIN a/k/a MARVEL CHARLORIN, AGOSTINO GAUDIO, VERWAYNE A. KINDA, (Individual Defendants), and ACCURATE DIAGNOSTIC LABS, LTD, AHI PHARMACY INC., ALL CITY FAMILY HEALTHCARE CENTER INC., ALL NATIONS DME CORP, AMA SUPPLY INC, AMERICAN MEDICAL INITIATIVES, P.C., AVIV MEDICAL, P.C., AZTEC MEDICAL PA, CENTRAL PARK PHYSICAL MEDICINE, P.C., CHI CHINESE ACUPUNCTURE, P.C., CITIMED COMPLETE MEDICAL CARE P.C., COMMUNITY MEDICAL CARE OF N.Y., P.C., CPM MED SUPPLY INC, EAST COAST MED GROUP INC, EMED PHARMACY CORPORATION, EXCELLENCE MEDICAL CARE P.C., EXTENSION PHYSICAL THERAPY PC., FLORAL PARK DRUGS INC., GEPP PSYCHOLOGICAL SERVICES PLLC, HACKENSACK SPECIALTY ASC LLC, HEALTHPLUS SURGERY CENTER LLC d/b/a INTEGRATED SPECIALTY ASC LLC, HUDSON REGIONAL HOSPITAL, IA CHIROPRACTIC PLLC, INTERFAITH MEDICAL CENTER, KALFAYAN MEDICAL CARE PX.L.C., KARIN GEPP, PH.D., KNAPP ORTHO SERVICES INC, LIFELINE MEDICAL IMAGING PC., LIVE AGAIN MEDICAL SUPPLY INC., WILLIAM FOCAZIO, M.D. d/b/a MEDICAL DIAGNOSTIC CENTER, MEDICORUM SUPPLIES INC, NEW CORE WELLNESS PHYSICAL THERAPY P.C., NEW YORK HERITAGE MEDICAL SERVICES, PLLC, NICOLA BROWN, N.P., OM PHYSICAL THERAPY PLLC, ONE RX CHEMIST INC, OZONE PARK SUPPLY INC, QUEENS ARTHROSCOPY AND SPORTS MEDICINE, PC., RIDGEWOOD DIAGNOSTIC LABORATORY LLC, RIGHT CHOICE SUPPLY INC, ROCKAWAY PARK MEDICAL P.C., SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, SILVER NEEDLE ACUPUNCTURE P.C., STAR OF N.Y. CHIROPRACTIC DIAGNOSTIC, P.C., STUART SPRINGER, M.D., P C., TAE YONG KIM, PT, THE BROOKLYN HOSPITAL CENTER, TOWN MEDICAL CARE, P.C., YK MEDICAL PLLC, (Healthcare Provider Defendants) Defendants.
Unpublished Opinion
Submission Date: 04/25/23
DECISION AND ORDER
HON. ERICA L. PRAGER, J.S.C.
| NYSCEF Doc. No. | |
| Motion Sequence 001 | |
| Notice of Motion, Affirmation, Affidavits & Exhibits............. | 78-152 |
| Affirmation in Opposition to Cross-Motion and In Further Support of Motion........................... | 191 |
| Motion Sequence 002 | |
| Notice of Cross-Motion, Affirmation in Opposition to Motion and In Support of Cross-Motion & Exhibits................. | 183-190 |
Upon the foregoing papers, the following motions are determined herein:
Motion Sequence 001. Plaintiffs motion for an Order: (i) pursuant to CPLR §3215, declaring defendants, JEAN M. MOISE, JAMES JOSEPH, JUNIOR ALADIN A/K/A JUNIOR ALADAIN, MARVEL CHALORIN A/K/A MARVEL CHARLORIN, AGOSTINO GAUDIO, VERWAYNE A. KINDA, ACCURATE DIAGNOSTIC LABS, LTD., AHI PHARMACY INC., ALL CITY FAMILY HEALTHCARE CENTER INC., ALL NATIONS DME CORP, AMA SUPPLY INC, AVIV MEDICAL, P.C., AZTEC MEDICAL PA, CENTRAL PARK PHYSICAL MEDICINE, P.C., CHI CHINESE ACUPUNCTURE, P.C., CITIMED COMPLETE MEDICAL CARE P.C., COMMUNITY MEDICAL CARE OF N.Y., P.C., CPMMED SUPPLYING, EAST COAST MED GROUP INC, EMED PHARMACY CORPORATION, EXCELLENCE MEDICAL CARE P.C., EXTENSION PHYSICAL THERAPY P.C., FLORAL PARK DRUGS INC., GEPP PSYCHOLOGICAL SERVICES PLLC, HACKENSACK SPECIALTY ASC LLC, HEALTHPLUS SURGERY CENTER LLC D/B/A INTEGRATED SPECIALTY ASC LLC, HUDSON REGIONAL HOSPITAL, IA CHIROPRACTIC PLLC, INTERFAITH MEDICAL CENTER, KALFAYAN MEDICAL CARE P.L.L.C., KARIN GEPP, PH.D., KNAPP ORTHO SERVICES INC, LIFELINE MEDIC AL IMAGING P.C., LIVE AGAIN MEDICAL SUPPLY INC., WILLIAM FOCAZIO, M.D. D/B/A MEDICAL DIAGNOSTIC CENTER, MEDICORUM SUPPLIES INC, NEW CORE WELLNESS PHYSICAL THERAPY P.C., NEW YORK HERITAGE MEDICAL SERVICES, PLLC, NICOLA BROWN, N.P.. OM PHYSICAL THERAPY PLLC, ONE RX CHEMIST INC, OZONE PARK SUPPLY INC, QUEENS ARTHROSCOPY AND SPORTS MEDICINE. P.C., RIDGEWOOD DIAGNOSTIC LABORATORY LLC, RIGHT CHOICE SUPPLY INC, ROCKAWAY PARK MEDICAL P.C., SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, SILVER NEEDLE ACUPUNCTURE P.C., STAR OF N.Y. CHIROPRACTIC DIAGNOSTIC, PC., STUART SPRINGER M.D., TAEYONG KIM, PT, THE BROOKLYN HOSPITAL CENTER, TOWN MEDICAL CARE, P C., YK MEDICAL PLLC, in default in appearing or answering the Summons and Complaint and awarding LM GENERAL INSURANCE. COMPANY a default judgment against the aforementioned defendants based upon their failure to appear and/or serve an Answer in the above-entitled action; and (ii) for such other and further relief that this Court deems just, proper and equitable.
Motion Sequence 002 Cross-motion by defendants, CENTRAL PARK PHYSICAL MEDICINE, P.C., COMMUNITY MEDICALCARE OF NX, PC, GEPP PSYCHOLOGICAL SERVICES, PLLC, KARIN GEPP, PH.D., LIFELINE MEDICAL IMAGING, P.C., WILLIAM FACAZIO, M.D., D/B/A MEDICAL DIAGNOSTIC CENTER, NEW CORE WELLNESS PHYSICAL THERAPY, P.C., NEW YORK HERITAGE MEDICAL SERVICES, PLLC, OM PHYSICAL THERAPY, PLLC, RIDGEWOOD DIGNOSTIC LABORATORY, LLC, TAEYONG KIM, PT., HACKENSACK SPECIALITY ASC LLC, HEALTHPLUS SURGERY CENTER, LLC D/B/A INTEGRATED SPECIALTY ASC, LLC, and NICOLA BROWN, N.P for an Order vacating the aforementioned defendants' default in this matter, and, upon vacatur, for an Order pursuant to CPLR § 3012(d) and/or §2004 granting the defendant an extension of time to appear and plead in this matter, compel plaintiff to accept defendants' Answer, and for such other and further relief as to this Court seems to be just and proper, at law, or in equity;
This is a declaratory judgment action in which plaintiff seeks a declaration that it is not obligated to provide automobile insurance coverage, including No Fault, unmsured/underinsured motorist, or liability coverage, to any of the defendants, for any present or future claims arising out of a motor vehicle incident that allegedly occurred on February 12, 2021. The incident involved a vehicle owned and operated by plaintiff's insured, JEAN M. MOISE, carrying passengers JUNIOR ALADIN, JAMES JOSEPH, and MARVEL CHALORIN, arid a vehicle operated by AGOSTINO GAUDIO and owned by VER WAYNEA. KINDA. The vehicle owned and operated by JEAN M. MOISE was insured by plaintiff pursuant to a policy of insurance issued to JEAN M. MOISE on February 12, 2021 (Policy No. AOS22156008840) (the "Policy"), Plaintiff asserts that it is not obligated to provide coverage under the Policy on the grounds that: (1) the incident was not a covered event insofar as it was an intentional and/or staged occurrence; (2) JAMES JOSEPH breached a condition precedent to coverage by failing to appear for a duly requested Examination Under Oath ("EUO"); and (3) JEAN M. MOISE, JUNIOR ALADIN, JAMES JOSEPH and MARVIN CHALORIN breached the Fraud provision of the Policy. In addition to the declaration sought, plaintiff seeks a permanent injunction of all actions, arbitrations, or other proceedings commenced by or on behalf of any of the defendants to recover payment of insurance benefits.
The action was commenced by the filing of the Summons and Complaint on April 18,2Q22. Plaintiff filed the instant motion for a default judgment on February 1,2023. Defendant AMERICAN MEDICAL INITIATIVES, P.C. had previously filed an Answer within the requisite time period (as extended by plaintiff) and thus no default judgment is sought as against this defendant. Several other defendants filed untimely Answers which were rejected by plaintiff. Subsequent to the filing of the instant motion, plaintiff stipulated with defendants ALL NATIONS DME CORP., FLORAL PARK DRUGS, INC., MEDICORUM SUPPLIES, INC., ONE RX CHEMIST, INC., and TOWN MEDICAL CARE, P C. to accept their Answers and to withdraw the pending motion for a default judgment as against them, Further, in its Affirmation in Opposition to Defendants' Cross-Motion and in Further Support of Plaintiff's Motion for a Default Judgment, plaintiff withdrew its motion as against NICOLA BROWN, N.P. These defendants are thus, at the outset, excluded from the list of defendants against whom a default judgment is sought.
On April 18, 2023, a cross-motion was filed on behalf of certain of the Defaulting Defendants, including CENTRAL PARK PHYSICAL MEDICINE, P.C., COMMUNITY MEDICAL CARE OF N.Y., P.C., GEPP PSYCHOLOGICAL SERVICES, PLLC, KARIN GEPP, PH D., LIFELINE MEDICAL IMAGING, P.C., WILLIAM FACAZIO, M.D., DZB/A MEDICAL DIAGNOSTIC CENTER, NEW CORE WELLNESS PHYSICAL THERAPY, P.C., NraEW YORK HERITAGE MEDICAL SERVICES, PLLC, OM PHYSICAL THERAPY, PLLC, RIDGEWOOD DIGNOSTIC LABORATORY, LLC, TAEYONGKIM, PT., HACKENSACK SPECIALITY ASC LLC, HEALTHPLUS SURGERY CENTER, LLC D/B/A INTEGRATED SPECIALTY ASC, LLC, & NICOLA BROWN, N.P. (collectively, the "Cross-Moving Defendants") to Vacate their default in this matter, and, upon vacatur, to grant an extension of time to appear and plead in this matter pursuant to CPLR §3012(d) and/or §2004. The Cross-Moving Defendants assert that they have a reasonable excuse for the delay, and a meritorious defense to the action.
The Court first considers the cross-motion, insofar as the resolution of the issues raised therein could limit the scope of the plaintiff's relief, Cross-Motion to Vacate De fault (Mot. Seq. 002)
An Answer was filed and served on behalf of the Cross-Moving Defendants on July 13,2022, but was rejected as untimely, The Cross-Moving Defendants assert that their relatively brief delay in answering the Complaint was inadvertent and excusable, In support of this assertion, the Cross Moving Defendants submit the Affidavit of Karina Brandon, paralegal in the Declaratory Judgment Department of the Rybak Firm PLLC, counsel for the Cross-Moving Defendants, sworn to oh April 18,2023.
Ms. Brandon notes that most of the Healthcare Provider Defendants were served with the Summons and Complaint through the Office of the New York Secretary of State. She claims that she first obtained notice that the Cross-Moving Defendants had been served with the Summons and Complaint in early July of 2022 and that the Answer was filed promptly thereafter in accordance with the Firm's office practices and procedures. Ms. Brandon asserts that she contacted the Office of the Secretary of State on March 10,2023 and was informed that they were experiencing a backlog of approximately three (3) months in mailing such papers to defendants. She states that each time she had contacted this office in the past, she was informed that they were experiencing a backlog. Accordingly, she attributes the Cross-Moving Defendants' delay in answering, in part, to the delays engendered by service through the New York Secretary of State's Office.
With respect to tire Cross-Moving Defendants who were personally served, counsel notes that WILLIAM FACAZIO, M.D. was served on June 7, 2022, and thus any delay in answering with respect to this defendant was minimal.
As to the merits of their defense, the Cross-Moving Defendants assert that plaintiff fails to set forth proof sufficient to establish the merits of its claim. With respect to the plaintiff's "staged accident" and fraud claims, the Cross-Moving Defendants argue, plaintiff fails to provide clear and convincing evidence, including first-hand confirmation of the facts alleged, but relies upon an investigator's report consisting primarily of inadmissible hearsay and speculation. Such report is not substantiated by tire EUO testimony of the Individual Defendants, insofar as the various discrepancies noted therein do not amount to proof that the incident was "staged." Moreover, whether or not an incident is deemed "intentional" under the law depends on the particular perspective of the individual whose intent is at issue. Here, plaintiff fails to identify which of the Individual Defendants may be deemed to have intentionally caused the subject incident, and whether or hot any of the Cross-Moving Defendants/Healthcare Provider Defendants were assigned claims by these particular Individual Defendants.
With respect to the disclaimer on the basis of JAMES JOSEPH'S failure to appear for an EUO, the Cross-Moving Defendants argue that plaintiff fails to demonstrate compliance with the No Fault regulatory scheme, and is thus precluded from disclaiming on this basis. Particularly, the Cross-Moving Defendants assert that plaintiff fails to prove when it received the completed verification forms, and thus fails to demonstrate the timeliness of the EUO requests and denials. Moreover, plaintiff fails to demonstrate that it had a reasonable basis to request the EUOs.
It is well settled in the Second Department that a reasonable excuse and a meritorious defense are required to excuse a default, even if a default judgment has not yet been entered. See HSBC Bank USA, Nat'l Ass'n v. Scivoletti, 212 A.D.3d 600, 602 (2d Dept. 2023); Ryan v Breezy Point Cooperative, Inc., 76 A.D.3d 523 (2d Dept. 2010); Juseinoski v Board of Educ. of City of N. Y., 15 A.D.3d 353 (2d Dept. 2005). The determination of what constitutes a reasonable excuse lies within the discretion of the Court. People's United Bank v Latini Tuxedo Management, 95 A.D.3d 1285 (2d Dept. 2012); LLC, Parker v City of New York, 272 A.D.2d 310 (2d Dept, 2000). Courts are instructed to consider the extent of the delay, whether there was willfulness on the part of the defaulting party, whether there has been prejudice to the opposing party, and the strong public policy in favor of resolving cases on the merits. Yongjie Xu v JJW Enterprises, Inc., 149 A.D.3d 1146 (2d Dept. 2017); Jong Gwon Kim v Strippoli, 144 A.D.3d 982 (2d Dept. 2016). In the exercise of its discretion, the Court may accept what amounts to law office failure as an excuse. See CPLR § 2005; Mid-Hudson Properties, Inc. v. Klein, 167 A.D.3d 862, 864 (2d Dept. 2018), Moore v Day, 55 A.D.3d 803 (2d Dept. 2008).
At bar, in the exercise of its discretion, the Court finds that the Cross-Moving Defendants' proffered excuse is sufficiently reasonable for purposes of granting the relief sought. Even if the Court does not consider the hearsay statements referred to in the Brandon Affidavit, the Court finds that the relevant factors weigh in favor of vacatur. First, the Court notes the relative brevity of the delay. Most of the Cross-Moving Defendants were served by delivery to the Secretary of State's Office between April 22,2022 and April 28,2022. Service of process was "complete" upon delivery to the Secretary of State's Office [BCL §306(b)(1)], and the defendants were required to answer or appear within thirty (30) days after service was complete [CPLR §320(a)]. Thus, their Answers had to be filed between May 22, 2022 and May 28,2022. The service and filing of their Answer on July 13.2022 was less than two months late. See Velez v. Mr. Demolition, Inc., 172 A.D.3d 1140,1142 (2d Dept. 2019) (excusing service of answer two months after expiration of statutory period); Yuxi Li v. Caruso, 161 A.D.3d 1132,1133 (2d Dept. 2018) (excusing service of answer less than three months after expiration of statutory period). Second, the Court finds no evidence of willfulness or an intent to abandon the defense of this action, nor does the Court discern any evidence of prejudice, to the plaintiff. Indeed, the plaintiff itself has accepted the untimely answer of other defendants who have sought extensions of time subsequent to the filing of this motion. Finally, although the Court acknowledges the failure of the Cross-Moving Defendants to reach out to plaintiff for an extension of time prior to the filing of their Answer or subsequent to its rejection, as well as their eight-month delay in bringing the instant motion for relief from their default, the Court finds that this shortfall of diligence is outweighed by the aforementioned factors, as well as the strong public policy in favor of determination on the merits.
The Court thus turns to the issue of whether the Cross-Moving Defendants have set forth a potentially meritorious defense. "The 'meritorious defense' requirement does not present a particularly high barrier." Brookdale Hosp. Med, Ctr. v. Lewis, 2005 N.Y. Slip. Op. 51200(U) (Civ. Ct. Kings Cnty. 2005). "The defendant need not necessarily present admissible evidence o f the type required on a motion for summary judgment?” Brookdale, 2005 N.Y. Slip. Op. 51200(11), citing Goldman v. City of New York, 287 A.D.2d 482, 483-84 (2d Dep't 20011)."The quantum of proof needed to prevail on a CPLR 5015(a)(1) motion is less than that required when opposing a summary judgment motion" Passeri v. Tomlins, 141 A.D.3d 816, 818 (3d Dept 2016); Est. of Witzigman v. Drew, 48 A.D.3d 1172, 1172 (4,h Dept. 2008);2hwWe, 2005 N.Y. Slip. Op. 51200(U), citing Clark v. MGM Textiles Industries, Inc., 307 A.D.2d 520, 521 (3d Dep't 2003).
At bar, although the Cross-Moving Defendants offer no affidavit in support of their affirmative defenses, the Court finds that their legal challenges to the plaintiff's proof are not without merit See, e.g., Reverse Mortg. Sols., Inc. v. Lanfrit, 58 Misc.3d 257, 264-65 (Sup. Ct., Suffolk Cty., 2017) (finding that deficiencies in plaintiff's proof established potentially meritorious defense warranting vacatur of default). The Court agrees that the in consistences in the EUO testimony cited by the plaintiff, as well as the links between one more of the individuals involved in this incident and other individuals, or other instances, of suspected insurance fraud, do hot necessarily establish that this incident was an intentional occurrence. See Webster Diagnostic Med., P.C. v. State Farm Ins. Co., 15 Misc.3d 97,98-99 (App. Term, 2d Dept. 2007) (holding that "[t]he: affidavit of defendant's special investigator and the attached exhibits failed to substantiate the investigator's conclusory allegations of the insured's participation in a "ring" that stages traffic incidents to defraud insurers ... In addition, the discrepancies in the testimony given by two passengers during their examinations under oath were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident") (internal citations and quotation marks omitted). To the extent that plaintiff's evidence might support a contention that one or more of the defendants made fraudulent claims, that does not necessarily establish that the occurrence itself was not an accident, as is necessary to warrant the sweeping declaration of non-coverage urged by the plaintiff.
Similarly, the Cross-Moving Defendants' challenge to the motion based upon the failure of JAMES JOSEPH to appear for an EUO is not without merit, to the extent that the failure of JAMES JOSEPH to appear for the EUO would not vitiate coverage of all claims, but would only relieve the plaintiff of liability for those claims made by JAMES JOSEPH and/or his assignees.
In view of this Court's finding that the Cross-Moving Defendants have offered a sufficiently reasonable excuse and potentially meritorious defense to this action, the Court finds that the relief sought is warranted, as to these defendants only.
Motion for a Default Judgment (Mot. Seq. 001)
Based upon the Court's determination on the Cross-Motion, the list of defendants against whom the motion for a default judgment is directed is further narrowed to exclude the Cross-Moving Defendants. Accordingly, the motion shall be considered as against the following defendants only:
JEANM. MOISE, JAMES JOSEPH, JUNIOR ALADIN A/K/A JUNIOR ALADAIN, MARVEL CHALORIN A/K/A MARVEL CHARLORIN, AGOSTINO GAUDIO, VER WAYNE A. KINDA, ACCURATE DIAGNOSTIC LABS, LTD., AHI PHARMACY INC., ALL CITY FAMILY HEALTHCARE CENTER INC., AMA SUPPLY INC, AVIV MEDICAL, P.C.,
AZTEC MEDICAL PA, CHI CHINESE ACUPUNCTURE, P.C,, CITIMED COMPLETE MEDICAL CARE P.C., CPM MED SUPPLY INC, EAST COAST MED GROUP INC, EMED PHARMACY CORPORATION, EXCELLENCE MEDICAL CARE P.C., EXTENSION PHYSICAL THERAPY P.C., HUDSON REGIONAL HOSPITAL, IA CHIROPRACTIC PLLC, INTERFAITH MEDICAL CENTER, KALFAYAN MEDICAL.CARE P.L.L.C., KNAPP ORTHO SERVICES INC, LIVE AGAIN MEDICAL SUPPLY INC., OZONE PARK SUPPLY INC, QUEENS ARTHROSCOPY AND SPORTS MEDICINE, P.C., RIGHT CHOICE SUPPLY INC, ROCKAWAYPARKMEDICALP.C., SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, SILVER NEEDLE ACUPUNCTURE P.C., STAR OF N.Y. CHIROPRACTIC DIAGNOSTIC, P.C., STUART SPRINGER M.D., THE BROOKLYN HOSPITAL CENTER, YK MEDICAL PLLC(collectively, the "Defaulting Defendants").
In support of its motion for a default judgment, plaintiff submits (among other things) copies of: (i) the Summons and Complaint, as well as the Answers filed by various defendants; (ii) the Affidavits of Service, attesting to service of the Summons and Complaint upon defendants; (iii) proof of compliance with the additional notice requirements of CPLR § 3215(g); (iv) the Affirmation of Counsel attesting to the failure of the Defaulting Defendants to answer or appear in this action, and presenting legal arguments in support of the motion; (v) the Affidavit of Karen Casazza, plaintiffs' Senior Special Investigator in the Special Investigative Unit, setting forth the factual basis of plaintiffs' claims; (vi) the Affidavit of Michelle Parisi, plaintiffs Senior Claims Resolution Specialist, setting forth plaintiffs routine office procedures and policies with respect to the processing of claims; (vii) the Affidavit of Michael A. Callinan, Esq., counsel who supervised the process of requesting and conducting EUOs, attesting to the timely mailing of all EUO requests and the failure of JAMES JOSEPH to appear at any of the duly scheduled EUOs; and (viii) supporting documentation, including the Police Accident Report; No Fault applications; transcripts of the EUO testimony of JEAN MOISE, MARVEL CHARLORIN and JUNIOR ALADAIN; EUO scheduling letters, and statements on the record attesting to the non-appearance of JAMES JOSEPH; denials of claim (Form NF-10) issued to assignees of JAMES JOSEPH.
On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the claim, arid the defendant's default in answering or appearing. Clarke v Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1194 (2d Dept. 2017) . See CPLR §3215(f). Proof of the facts constituting the claim may be made by party affidavit or party-verified complaint. CPLR §3215(f). "Given that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists.... Indeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them." Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 (2003) (internal citation omitted); see also Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192 (2d Dept 2017) Allstate Prop, & Cas. Ins. Co. v. Carrier, 147 A.D.3d 889, 890 (2d Dept 2017).
Although the Court cannot find, on the record presented, that the plaintiff has:met its prima facie burden to establish entitlement to judgment as a matter of law, as would be required to prevail on a motion for summary judgment, the. Court finds that plaintiff's showing is sufficient to satisfy the lower level of proof required on a motion for a default judgment - that is, plaintiff has established (by party affidavit) that a viable cause of action exists. The Court finds "nothing inconsistent about finding that a plaintiff has met its burden of proof under CPLR 3215(f) and also concluding, whether at the time of the initial application for a default judgment or thereafter, that the defendant nonetheless has a meritorious defense to the action and might well prevail if the case were allowed to proceed to trial." State v. Williams, 26 Misc.3d 743, 751 (Sup. Ct., Albany Cty. 2009) Both findings require a lesser showing than is required for rendering a determination as a matter of law. Here, it is not inconsistent to hold that a plaintiff has a viable cause of action, but that certain defendants have raised a potentially meritorious defense. No findings of fact are made on the evidence presented herein.
The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.
Based upon the foregoing, it is
ORDERED, that plaintiffs motion for a default judgment as against the Defaulting Defendants (Mot. Seq. 001) is granted. Proceedings for the entry of a judgment shall be conducted at the time of or following the trial or other disposition of the action against the defendants who have answered. CPLR §3215(d); Ramirez v Islandia Executive Plaza. LLC, 92 A.D.3d 747 (2d Dept. 2012); and it is further
ORDERED, that the Cross-Moving Defendants' motion to vacate their default, and, upon vacatur, for an Order pursuant to CPLR §3012(d) and/or §2004 granting said Defendants an extension of time to appear and plead in this matter and compelling plaintiff to accept defendants' Answer is granted.
Any requests for relief not specifically addressed herein are denied.
This constitutes the Decision and Order of this Court.