Opinion
2020-385 K C
08-12-2022
Jules Francois PARISIEN, M.D., as Assignee of Pierre-Louis, Emma, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREE A. BUGGS, JJ.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits from the alleged insurer of its assignor, defendant failed to appear or answer the complaint, and a default judgment was entered on July 26, 2018. On September 6, 2018, defendant served an answer and, in November 2018, it moved to vacate the default judgment. Plaintiff appeals from an order of the Civil Court entered October 21, 2019 granting defendant's motion, finding that defendant had demonstrated a reasonable excuse for its default and a meritorious defense.
In its moving papers, defendant explained that its default had been due to its own failure to forward the complaint to its attorneys. However, it asserted that it had not ignored the matter, but rather had informed plaintiff several months prior to the commencement of the action that it was not the insurance carrier for plaintiff's assignor—an assertion which plaintiff has never contradicted. Upon receiving notice of the default judgment, defendant requested that the action be "withdrawn." Defendant thereafter referred the matter to its counsel, which promptly served an answer and then moved to vacate the default judgment.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co. , 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). The determination of what constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court (see Nationstar Mtge., LLC v. Ramnarine , 172 A.D.3d 886, 886, 100 N.Y.S.3d 278 [2019] ). Here, in light of the absence of an evident pattern of neglect and counsel's prompt actions, upon entering the case, in seeking to vacate the default (see Barajas v. Toll Bros. , 247 A.D.2d 242, 242-243, 669 N.Y.S.2d 35 [1998] ), the meritorious defense of lack of coverage, which plaintiff has never disputed, plaintiff's failure to claim any prejudice by reason of the brief delay involved (see New York Univ. Hosp. Tisch Inst. v. Merchants Mut. Ins. Co. , 15 A.D.3d 554, 555, 792 N.Y.S.2d 83 [2005] ; see also Matter of A & F Scaccia Realty Corp. v. New York City Dept. of Envtl. Protection , 200 A.D.3d 875, 878, 161 N.Y.S.3d 108 [2021] ; Allstate Ins. Co. v. North Shore Univ. Hosp. , 163 A.D.3d 745, 746, 82 N.Y.S.3d 61 [2018] ), and the public policy favoring the resolution of cases on the merits (see Allstate Ins. Co. v. North Shore Univ. Hosp. , 163 A.D.3d at 746, 82 N.Y.S.3d 61 ; Westchester Med. Ctr. v. Hartford Cas. Ins. Co. , 58 A.D.3d 832, 833, 872 N.Y.S.2d 196 [2009] ; Legion Ins. Co. v. James , 27 Misc. 3d 128[A], 2010 N.Y. Slip Op. 50593[U], 2010 WL 1424267 [App. Term, 2d Dept., 2d, 11th & 13th Jud Dists 2010] ), we conclude that the Civil Court providently exercised its discretion in granting defendant's motion.
Accordingly, the order is affirmed.
ALIOTTA, P.J., and BUGGS, J., concur.
WESTON, J., dissents and votes to reverse the order and deny defendant's motion to vacate the default judgment in the following memorandum:
When defendant was served with a summons and complaint on May 29, 2018, it elected not to forward the matter to its attorney to serve and file an answer because it believed that plaintiff's claim is meritless. Defendant did not answer until September 6, 2018, approximately six weeks after a default judgment had been entered on July 26, 2018 and more than three months after service. A party may not choose when to answer and, given the lengthy delay in answering, it is clear that defendant's default was intentional and, therefore, inexcusable (see Fok v. Insurance Co. of N. Am. , 151 A.D.2d 722, 722, 542 N.Y.S.2d 786 [1989] ). Since defendant failed to establish a reasonable excuse for its default in answering the complaint, defendant's motion should have been denied without the need to consider whether defendant demonstrated the existence of a potentially meritorious defense (see Nationstar Mtge., LLC v. Ramnarine , 172 A.D.3d 886, 887, 100 N.Y.S.3d 278 [2019] ; New Century Mtge. Corp. v. Adeyan-Ju , 139 A.D.3d 683, 684, 32 N.Y.S.3d 193 [2016] ).
Accordingly, I vote to reverse the order and deny defendant's motion to vacate the default judgment.