K.O. Med., P.C. v Avis Budget Group

[*1] K.O. Med., P.C. v Avis Budget Group 2017 NY Slip Op 50688(U) Decided on May 19, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
NO.2015-2282 K C

K.O. Medical, P.C., as Assignee of Powell Julian, Appellant,

against

Avis Budget Group, Respondent.

Law Offices of Melissa Betancourt, for appellant. Rubin, Fiorella & Friedman, LLP (Jason W. Moussourakis, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered July 1, 2015. The order, insofar as appealed from as limited by the brief, granted defendant's motion to compel plaintiff to accept defendant's late answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion to compel plaintiff to accept defendant's late answer is denied.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. An affidavit of service stated that the summons and endorsed complaint had been served on defendant on May 30, 2014. On September 11, 2014, defendant served an answer, which plaintiff rejected as untimely. Upon plaintiff's application, a default judgment awarding plaintiff the principal sum of $3,507.53 was entered on October 1, 2014. Defendant moved, by order to show cause returnable on October 31, 2014, to compel plaintiff to accept the answer. Plaintiff opposed the motion. By order entered July 1, 2015, the Civil Court granted defendant's motion to the extent of deeming the answer timely served and ordered defendant to move to vacate the default judgment and for summary judgment dismissing the complaint. As limited by the brief, plaintiff appeals from so much of the order as granted defendant's motion to compel plaintiff to accept the late answer.

For the reasons stated in K.O. Med., P.C., as Assignee of Powell Julian v Avis Budget Group (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-2278 K C], decided herewith), the order, insofar as appealed from, is reversed, and defendant's motion to compel plaintiff to accept defendant's late answer is denied.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: May 19, 2017