A.M. Med. Servs., P.C. v Avis Rent A Car

[*1] A.M. Med. Servs., P.C. v Avis Rent A Car 2009 NY Slip Op 52177(U) [25 Misc 3d 132(A)] Decided on October 20, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1620 Q C.

A.M. Medical Services, P.C. as assignee of SERGHEI ULIANOV, Appellant,

against

Avis Rent a Car, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered August 8, 2008. The order, insofar as appealed from, granted so much of a motion by defendant as sought to vacate an order granting plaintiff's unopposed motion for summary judgment and the judgment entered pursuant thereto.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In order to vacate the order granting plaintiff's unopposed motion for summary judgment and the judgment entered pursuant thereto, defendant was required to establish both a reasonable excuse for its default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The affidavits submitted by defendant in support of its motion suffice to establish that defendant had a reasonable excuse for its failure to oppose plaintiff's motion for summary judgment.

Defendant also demonstrated that it has a meritorious defense and raised a triable issue of fact. The affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant's standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, defendant submitted two affirmed peer review reports, each explaining why the services billed for were not medically necessary (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 20, 2009