A.B. Med. Servs. PLLC v Citiwide Auto Leasing Inc.

[*1] A.B. Med. Servs. PLLC v Citiwide Auto Leasing Inc. 2005 NYSlipOp 50788(U) Decided on May 23, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: May 23, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-810 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. STARRETT MEDICAL L.C. P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Eddy Luc, Appellants,

against

CITIWIDE AUTO LEASING INC. d/b/a DOLLAR RENT A CAR, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (R. Garson, J.), entered April 2, 2004, which granted defendant's motion to vacate the default judgment entered against it.

Order unanimously affirmed without costs.

Plaintiffs brought this action to recover first-party no-fault benefits for medical services allegedly rendered to their assignor and obtained a default judgment upon defendant's failure to serve an answer.

A court may vacate its own judgment for sufficient reason and in the interests of substantial justice (see Weinstein-Korn-Miller, NY Civ Prac ¶ 5015 [a] [3]; see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Ladd v Stevenson, 112 NY 325, 332 [1889]). The defendant timely denied the claims based on the assignor's testimony at the examination under oath at which he "withdrew" his claim. Accordingly, a question of fact has [*2]been shown to exist with regard to whether the claim at the outset was fraudulent as involving a non-covered incident (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; see A.B. Med. Servs. PLLC [Louidins] v Citiwide Auto Leasing, No. 2004-812 K C and A.B. Med. Servs. PLLC [Smith] v Citiwide Auto Leasing, No. 2004-669 K C [decided herewith]).
Decision Date: May 23, 2005