City Wide Social Work & Psychological Servs., P.L.L.C. v State-Wide Ins. Co.

[*1] City Wide Social Work & Psychological Servs., P.L.L.C. v State-Wide Ins. Co. 2008 NY Slip Op 50909(U) [19 Misc 3d 140(A)] Decided on April 25, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1968 K C.

City Wide Social Work and Psychological Services, P.L.L.C. a/a/o Arjoonkingh Latchman, Gonzalez Jose L., Munoz Blanca, Joshua Florine and Freidman Devorah, Appellant,

against

State-Wide Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 25, 2006. The order, insofar as appealed from as limited by the brief, granted defendant's motion to vacate the default judgment entered against it.

Order, insofar as appealed from, reversed without costs and defendant's motion to vacate the default judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant failed to submit opposition. The court granted plaintiff's motion, and plaintiff entered judgment pursuant thereto. Defendant moved to vacate the judgment, arguing that it was improperly entered
as plaintiff failed to comply with CPLR 3215 (f). The court below granted defendant's motion. This appeal by plaintiff ensued.

Inasmuch as the judgment was entered pursuant to an order that granted plaintiff's motion for summary judgment upon defendant's failure to oppose same, CPLR 3215 is inapplicable. To the extent defendant's motion sought vacatur pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). The record reveals that defendant failed to demonstrate that it has a meritorious defense to plaintiff's action, since defendant did not show that its proffered defenses were set forth in timely denial of claim forms such that defendant is not precluded from interposing such defenses (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]) or that defendant possessed a defense which was not [*2]subject to preclusion (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). In light of the foregoing, defendant's motion to vacate the judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 2008