D & r Med. Supply, Inc. v American Tr. Ins. Co.

[*1] D & r Med. Supply, Inc. v American Tr. Ins. Co. 2012 NY Slip Op 50785(U) Decided on April 27, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

D & r Medical Supply, Inc. as Assignee of RANDY BATISTA, Respondent,

against

American Transit Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 28, 2010. The order denied defendant's motion to vacate an order entered December 8, 2009 which had granted, as unopposed, plaintiff's motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant's cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered August 16, 2010 dismissing the complaint (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, the order entered July 28, 2010 is vacated, defendant's motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff's motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant's cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint is granted, and plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was granted on default inasmuch as the court refused to consider defendant's opposing papers as well as its cross motion for summary judgment dismissing the complaint because, while the cross motion and opposing papers had been served 21 days before the return date of the motion, they were untimely pursuant to a briefing schedule set by the Civil Court. Defendant appeals from an order entered July 28, 2010 which denied its motion to vacate the default order entered December 8, 2009 and, upon vacatur, for a new determination of plaintiff's motion for summary judgment and defendant's cross motion for summary judgment.
We deem the appeal to be from the judgment which was subsequently entered (see CPLR 5512 [a]).

The Civil Court's denial of defendant's motion was premised upon the fact that the order which had granted plaintiff's motion on default had already determined that defendant's untimely [*2]papers should not be considered. However, where, as here, a defendant is seeking to vacate an order entered on default, relief may be granted upon a showing that there was a reasonable excuse for the default and that the defendant has a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby's Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]). In the instant case, defendant proffered a reasonable excuse for its failure to timely submit its opposing papers and cross motion, and also set forth a meritorious defense to the action. Accordingly, the judgment is reversed, the order entered July 28, 2010 is vacated, defendant's motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff's motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant's cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint is granted, and plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012