ALFA Med. Supplies, Inc. v Allstate Ins. Co.

[*1] ALFA Med. Supplies, Inc. v Allstate Ins. Co. 2016 NY Slip Op 50942(U) Decided on June 20, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P, Lowe, III, Ling-Cohan, JJ.
570085/16

ALFA Medical Supplies, Inc., a/a/o Juan Vargas, Plaintiff-Appellant,

against

Allstate Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Michael L. Katz, J.), entered May 14, 2015, which granted defendant's motion to vacate a default judgment.

Per Curiam.

Order (Michael L. Katz, J.), entered May 14, 2015, reversed, with $10 costs, motion denied and default judgment reinstated.

Defendant-insurer failed to offer a reasonable excuse to adequately explain its two-year delay in answering the complaint in this action seeking to recover first-party no-fault benefits. The affidavit of defendant's claim representative, who was employed in defendant's office in Hauppauge, New York, averred that there was no record of the summons and complaint in defendant's computer system. However, the affiant failed to demonstrate personal knowledge of the office procedures put in place by defendant in connection with the handling of a summons and complaint received at defendant's office in Lake Success, New York (see Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]; Medcare Supply, Inc. v Farmers New Century Ins. Co., 45 Misc 3d 135[A], 2014 NY Slip Op 51752[U][App Term, 1st Dept. 2014]). "Thus, that affidavit was insufficient to show that the failure to timely appear and answer was due to a clerical error which caused the summons and complaint to be overlooked" (Westchester Med. Ctr., 69 AD3d at 614). Accordingly, there is no need to reach the issue of meritorious defense (see Uram v Smith, 138 AD3d 553 [2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 20, 2016