Opinion
No. 2011–222 Q C.
2012-11-26
John M. VENTRUDO, M.D. as Assignee of Joan Webson, Appellant, v. GEICO INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 15, 2010. The order denied plaintiff's motion to enter a default judgment and deemed defendant's answer “served and accepted and filed.”
Present: RIOS, J.P., ALIOTTA and SOLOMON, JJ.
ORDERED that the order is modified by striking the provision thereof that deemed defendant's answer “served and accepted and filed”; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied his motion for leave to enter a default judgment and deemed defendant's answer “served and accepted and filed.”
In support of his motion, plaintiff proffered an attorney-verified complaint and an affirmation by his attorney, neither of which is sufficient to satisfy the requirements of CPLR 3215(f). Consequently, plaintiff did not establish his entitlement to the entry of a default judgment ( see Balance Chiropractic, P.C. v. Property & Cas. Ins. Co. of Hartford, 27 Misc.3d 138 [A], 2010 N.Y. Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; All Mental Care Medicine, P.C. v. Allstate Ins. Co., 15 Misc.3d 129[A], 2007 N.Y. Slip Op 50612[U] [App Term, 2d & 11th Jud Dists 2007] ). However, the Civil Court erred in deeming defendant's answer “served and accepted and filed,” as defendant had failed to demonstrate its entitlement to such relief by showing that it had a reasonable excuse for its default and a meritorious defense to the action ( seeCPLR 5015[a]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138 [1986] ). Thus, that portion of the order must be stricken.
Accordingly, the order is modified by striking so much of the order as deemed defendant's answer “served and accepted and filed,” and, as so modified, is affirmed.