Opinion
2019-167 K C
05-14-2021
YUMI ACUPUNCTURE, P.C., as Assignee of Russell Harrod, Appellant, v. ALLSTATE INS. CO., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Offices of James F. Sullivan, for respondent (no brief filed).
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant.
Law Offices of James F. Sullivan, for respondent (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.
ORDERED that the order entered January 11, 2019 is reversed, with $30 costs, and defendant's motion to vacate the judgment entered October 4, 2017 and to compel plaintiff to accept defendant's answer is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered January 11, 2019 granting defendant's motion to vacate a judgment of that court entered October 4, 2017 upon defendant's failure to appear or answer the complaint, and to compel plaintiff to accept defendant's answer.
"A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim , 183 AD3d 698 [2020] ; US Bank N.A. v Dedomenico , 162 AD3d 962, 964 [2018] )" ( JE & MB Homes, LLC v U.S. Bank N.A. , 189 AD3d 1195, 1196 [2020] ). As defendant failed to demonstrate that it possessed both a reasonable excuse for its default and a meritorious defense, defendant's motion to vacate its default should have been denied.
Accordingly, the order entered January 11, 2019 is reversed and defendant's motion to vacate the judgment entered October 4, 2017 and to compel plaintiff to accept defendant's answer is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.