Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc.

[*1] Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. 2005 NYSlipOp 51314(U) Decided on August 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-918 K C NO. 2004-918 K C

Ocean Diagnostic Imaging P.C., a/a/o Debera Souvenir, Appellant,

against

Citiwide Auto Leasing Inc., d/b/a DOLLAR RENT A CAR, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Waltrous, J.), entered May 14, 2004, which granted defendant's motion to vacate the default judgment and to compel plaintiff to accept a late answer.

Order reversed without costs and defendant's motion to vacate the default judgment denied.

"A party seeking to be relieved of its default must establish both a reasonable excuse for the default and a meritorious defense * * *" (Eretz Funding v Shalosh Assocs., 266 AD2d 184, 185 [1999]). In the instant case, defendant failed to serve an answer or otherwise appear. After defendant's time to do so expired, defendant was
served with a motion seeking to obtain a default judgment. Defendant did not oppose the motion and a default judgment was entered.

We have previously held that "an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period" (Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists]; see also Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co., 4 Misc 3d 138[A], 2004 NY Slip Op 50905[U] [App Term, 2d & 11th Jud Dists]). In the instant case, the denial of claim form issued by defendant merely informed plaintiff that a decision on the claim was delayed pending an examination under oath investigation without specifying the person or entity from whom the verification was sought. However, because defendant failed to establish in the first instance that the insurance policy contained an endorsement authorizing an [*2]examination under oath, the fact that defendant was awaiting an examination under oath to which it may not have been entitled did not constitute a meritorious defense (see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Moreover, inasmuch as said denial of claim form was insufficient to rebut plaintiff's demonstration of a prima facie entitlement to summary judgment (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]), defendant's motion to vacate the default judgment entered against it failed to demonstrate that defendant possessed a meritorious defense. Consequently, the
court improvidently exercised its discretion when it granted defendant's motion, inter alia, to vacate said default judgment (see Epps v LaSalle Bus, 271 AD2d 400 [2000]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005];

Pesce, P.J., and Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Debera Souvenir,

Appellant,

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

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

I agree with the ultimate disposition in the decision reached by the majority. Inasmuch as I find that the defendant failed to establish an excusable default and therefore do not reach the question of whether or not there was a meritorious defense.

I do, however wish to emphasize that I disagree with certain propositions of law set forth by the majority which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: August 17, 2005