Opinion
No. 2014–2194 K C.
04-11-2017
MAXIMUM CHIROPRACTIC, P.C., as Assignee of Ramon Duverge, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered September 4, 2014. The order, insofar as appealed from, denied plaintiff's motion to enter a default judgment and granted the branch of defendant's cross motion seeking to compel plaintiff to accept an untimely answer.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant failed to timely answer. Plaintiff subsequently moved for leave to enter a default judgment pursuant to CPLR 3215, and defendant cross-moved to, among other things, compel plaintiff to accept an untimely answer previously served. Plaintiff appeals from so much of an order as denied its motion and granted that branch of defendant's cross motion. We affirm.
Contrary to plaintiff's argument, the branch of defendant's cross motion seeking to compel plaintiff to accept the untimely answer was properly granted, as defendant demonstrated both a reasonable excuse and a potentially meritorious defense (see Merchants Ins. Group v. Hudson Val. Fire Protection Co., Inc., 72 AD3d 762 [2010] ). The documents and detailed affidavits submitted by defendant sufficiently established that defendant had not received the summons and complaint and that defendant may have a viable defense based on a lack of medical necessity.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.