Psychological Practice, P.C. v Utica Mut. Ins. Co.

[*1] Psychological Practice, P.C. v Utica Mut. Ins. Co. 2007 NY Slip Op 51982(U) [17 Misc 3d 130(A)] Decided on September 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1246 K C.

Psychological Practice, P.C. a/a/o ESPINAL KELVIN, Appellant,

against

Utica Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered May 10, 2006. The order granted defendant's motion to vacate a default judgment.

Order affirmed without costs.

A motion to vacate a default judgment is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]) and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]). While a delay by the insurance carrier is generally insufficient to establish a reasonable excuse for a default (see Juseinoski v Board of
Educ. of City of New York, 15 AD3d 353 [2005]; A.B. Med. Servs. PLLC v Citiwide Auto Leasing Inc., 7 Misc 3d 136[A], 2005 NY Slip Op 50786[U] [App Term, 2d & 11th Jud Dists]), where, as here, defendant demonstrates the existence of a question of fact as to whether the claim at the outset was fraudulent and involves a non-covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]), we find that the court below did not improvidently exercise its discretion in vacating the default judgment (see A.B. Med. Servs. PLLC v Citiwide Auto Leasing Inc., 7 Misc 3d 136[A], 2005 NY Slip Op 50786[U], supra).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007