VE Med. Care, P.C. v. Travelers Cas. Co. of Conn.

Full title: VE Medical Care, P.C. as Assignee of NEDRA SANTOS, Appellant, - v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Jun 11, 2015

2015 N.Y. Slip Op. 50909 (N.Y. App. Term 2015)

17 N.Y.S.3d 386

Opinion

2014-398 K C

06-11-2015

VE Medical Care, P.C. as Assignee of NEDRA SANTOS, Appellant, - v. Travelers Casualty Company of Connecticut, Respondent.

WESTON, J.P.

PRESENT: : , ALIOTTA and ELLIOT, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered July 31, 2013. The order denied plaintiff's motion to vacate so much of a prior order of the same court entered February 3, 2012 as, upon an unopposed motion by defendant for summary judgment dismissing the complaint, granted defendant partial summary judgment dismissing so much of the complaint as sought to recover upon three claims for services rendered from October 1, 2008 through November 25, 2008.

ORDERED that the order entered July 31, 2013 is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court did not improvidently exercise its discretion in denying plaintiff's motion to vacate so much of a prior order of the same court entered February 3, 2012 as, upon an unopposed motion by defendant for summary judgment dismissing the complaint, granted defendant partial summary judgment dismissing so much of the complaint as sought to recover upon three claims for services rendered from October 1, 2008 through November 25, 2008.

In order to vacate a default in opposing a party's motion for summary judgment, the opposing party must demonstrate both a reasonable excuse for its default in opposing the motion and a meritorious opposition to the motion (see CPLR 5015 [a]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]). While plaintiff may have demonstrated that defendant's motion was untimely (see CPLR 3212 [a]), thus establishing the existence of a meritorious opposition (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 392), plaintiff failed to demonstrate a reasonable excuse for its failure to timely submit written opposition to defendant's motion. Plaintiff's conclusory and unsubstantiated assertions of law office failure were insufficient (see Wechsler v First Unum Life Ins. Co., 295 AD2d 340 [2002]). Indeed, an attorney's neglect of a matter is not acceptable as a reasonable excuse (see Morales v Perfect Dental, P.C., 73 AD3d 877 [2010]). We further note that plaintiff did not demonstrate the existence of a meritorious cause of action (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 392; see also Raciti v Sands Point Nursing Home, 54 AD3d 1014 [2008]; Rockland Tr. Mix, Inc. v Rockland Enters. Inc., 28 AD3d 630 [2006]).

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.