Sound Shore Medical Center v Lumbermens Mutual Casualty Company

Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co. 2006 NY Slip Op 05939 [31 AD3d 743] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Sound Shore Medical Center, as Assignee of Melvin Mansfield, Jr., Appellant,
v
Lumbermens Mutual Casualty Company, Respondent.

—[*1]

In an action to recover no-fault medical payments, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated December 8, 2005, as granted that branch of the defendant's motion which was to vacate a clerk's judgment of the same court entered June 16, 2005, upon its failure to appear or answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

A party seeking to vacate a judgment entered on default must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and 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]). The defendant established a reasonable excuse for the delay in serving its answer by submitting an affidavit from its employee attesting to a clerical error regarding the delay in forwarding the summons and complaint to its attorney and in answering the complaint (see Triangle Transp., Inc. v Markel Ins. Co., 18 AD3d 229 [2005]; Burgos v Allcity Ins. Co., 272 AD2d 195 [2000]). Moreover, that affidavit established that the default was not willful or deliberate, and there was no showing of prejudice to the plaintiff (see Gaylord v Serafino, 274 AD2d 547 [2000]; Murphy v D.V. Waste Control Corp., 124 AD2d 573 [1986]; Foglia v Fashion Floors, 79 AD2d 598 [1980]). Furthermore, the defendant made a prima facie showing of a meritorious defense (see 11 NYCRR 65-1.1; St. Vincent's Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005], lv denied 7 NY3d 702 [2006]; 65 N. 8 St. HDFC v Suarez, 18 AD3d 732 [2005]; Anamdi v Anugo, 229 AD2d 408 [1996]). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was to vacate the clerk's judgment entered against it upon its failure to appear or answer (see Harcztark v Drive Variety, Inc., 21 AD3d 876 [2005]). Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.