Lefferts Med., Inc. v Lumbermens Mut. Cas. Co.

[*1] Lefferts Med., Inc. v Lumbermens Mut. Cas. Co. 2006 NY Slip Op 51136(U) [12 Misc 3d 1170(A)] Decided on June 20, 2006 Civil Court, Kings County Edwards, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2006
Civil Court, Kings County

Lefferts Medical, Inc., a/a/o Stanley Buckmire and Tiffany Zeleny, Plaintiff,

against

Lumbermens Mutual Casualty Company, Defendant.



116908/04

Genine D. Edwards, J.

In this action to recover no-fault benefits, defendant moves for leave to reargue its Order to Show Cause and to vacate the default judgment entered against it on January 25, 2005. In order to support a motion to reargue, the defendant must demonstrate that the Court overlooked relevant facts or misapprehended the applicable law or for some other reason improperly decided the prior motion. CPLR §2221; Carillo v. PM Realty Group, 16 AD3d 611 (2nd Dept. 2005).

Viewing the defendant's Order to Show Cause to vacate the default judgment from this perspective it is clear that the defendant was required to prove that it had a reasonable excuse for its default and a meritorious defense to the case. Presbyterian Hospital in the City of New York v. New York Central Mutual Insurance Company, 277 AD2d 299 (2nd Dept. 2000); New York and Presbyterian Hospital v. Travelers Property Casualty Insurance Company, 27 AD3d 708 (2nd Dept. 2006). Failure to prove one prong would confirm the default judgment. In this instance the defendant failed on both scores, no competent evidence was offered as to the defendant's excuse for its untimely answer or its meritorious defense. Specifically, the defendant merely asserted that an attorney erroneously calculated the days for service of its answer. But the defendant failed to provide an affidavit of an individual with personal knowledge of this miscalculation. Hence, the defendant failed at its proof. A.B. Medical Services PLLC D.A.V. Chiropractic P.C. LVOV Acupuncture P.C. v. Allstate Insurance Company, 11 Misc 3d 128(A) (App. Term 2nd & 11th Jud. Dists. 2006).

Moreover, the affidavits proffered by defendant did not constitute a meritorious defense. Neither of the affidavits established that the denial of claim forms or verification requests were timely mailed. Indeed, merely alleging that the claims were "timely denied" or that the affiant [*2]had "personal knowledge" is not probative. The affidavits did not contain a detailed description of the mailing of the denial of claim forms or the verification requests in order to create a presumption of mailing. A.B. Medical Services PLLC D.A.V. Chiropractic P.C. Daniel Kim's Acupuncture P.C. Royalton Chiropractic P.C. v. Specialty National Insurance Company, 2006 NY Slip Op 50810U (App. Term 2nd & 11th Jud. Dists. 2006); St. Luke's Roosevelt Hospital v. Blue Ridge Insurance Company, 21 AD3d 946 (2nd Dept. 2005); New York Hospital Medical Center of Queens v. Insurance Company of the State of Pennsylvania, 16 AD3d 391 (2nd Dept. 2005); Mingmen Acupuncture Services P.C. v. Liberty Mutual Insurance Company, 2002 NY Slip Op. 40244(U) (App. Term 9th & 10th Jud. Dists. 2002). A meritorious defense goes to the essentials of the case; if established it constitutes a defense to the action. A proper affidavit or two would have demonstrated that the defendant timely denied the claims or timely requested verification of the claims, thus providing a defense to the action. A mere semblance of merit the affidavits of Ms. Copp and Ms. Winantmisses the mark.

However, defendant's contention that the default judgment should not have been entered because the plaintiff never rejected the answer is persuasive. The default judgment was erroneously entered since plaintiff waived its right to enter a default judgment by accepting and retaining defendant's answer. Abernathy v. Mo Ali, 3 Misc 3d 136(A) (App. Term 2nd & 11th Jud. Dists. 2004); Volin v. City Beach Catering Corporation, 166 AD2d 583 (2nd Dept. 1990); Jordan v. Aviles, 289 AD2d 532 (2nd Dept. 2001); Gonzalez v. Gonzalez, 240 AD2d 630 (2nd Dept. 1997); First Wisconsin Trust Company v. Hakimian, 237 AD2d 249 (2nd Dept. 1997). Plaintiff's affirmation in opposition failed to provide one iota of admissible evidence as to when it received defendant's answer. Thus, plaintiff cannot argue that it did not have reasonable time to reject the pleading. Considering the relevant caselaw, the default judgment should never have been entered.

Based upon the erroneous entry of the default judgment, the defendant is not obligated to set forth a reasonable excuse for failing to timely answer or a meritorious defense to this action. Compare, Goodyear v. Weinstein, 224 AD2d 387 (2d Dept. 1996); Gerhardt v. J & R Salacqua Contracting Co., Inc., 181 AD2d 719 (2d Dept. 1992) (where an erroneous default judgment was entered movant did not have to prove reasonable excuse or meritorious defense). It is accordingly,

Ordered that the defendant's motion is granted, the default judgment is vacated and the plaintiff will accept defendant's answer as attached to this motion.

This constitutes the decision and order of this Court.

Dated: Brooklyn, New York

June 20, 2006 _____________________________

Genine D. Edwards, J.C.C.