A.B. Med. Servs. PLLC v Phoenix Ins. Co. Div. of Travelers

[*1] A.B. Med. Servs. PLLC v Phoenix Ins. Co. Div. of Travelers 2004 NY Slip Op 51294(U) Decided on October 29, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
2003-1056 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM's ACUPUNCTURE P.C. SOMUN ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o USUF ABRASHALOF, Appellants,

against

PHOENIX INSURANCE COMPANY DIV. OF TRAVELERS, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (B. Balter, J.), entered on March 13, 2003, granting defendant's motion to vacate a default judgment and compelling plaintiffs to accept defendant's answer.

Order unanimously affirmed without costs.

The court did not improvidently exercise its discretion to excuse the defendant's default, resulting from law office failure (see CPLR 2005), and granting defendant leave to serve a late answer. There is no evidence that the default was willful or that plaintiffs were prejudiced thereby. Moreover, defendant has shown the existence of a potential meritorious defense, namely that plaintiffs' assignor failed to comply with defendant's verification requests. Under these circumstances, and in consideration of public policy in favor of resolving cases on the [*2]merits, we determine that the defendant's motion was properly granted (see Vita v Alstom Signaling, Inc., 308 AD2d 582, 583 [2003]; Lefkowitz v Kaye, Scholer, Fireman, Hays & Handler, 271 AD2d 576, 577 [2000]; see also Goodman v NYC Health & Hospitals Corp., 2 AD3d 581 [2003]; Drake v Drake, 296 AD2d 566 [2002]).
We note that plaintiffs were required to submit an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts in support of their motion to enter a default judgment pursuant to CPLR 3215 (f) (see Goodman v NYC Health & Hospitals Corp., 2 AD3d 581, supra; Bass v Wexler, 277 AD2d 266 [2000]; Grainger v Wright, 274 AD2d 549 [2000]), and that the affidavit of David Safir, wherein he stated that he was "the medical billing officer of plaintiff(s)," is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v Allstate Ins. Co., 3 Misc 3d 129 [A], 2004 NY Slip Op 50373 [U] [App Term, 2d & 11th Jud Dists]).
Decision Date: October 29, 2004