Consolidated Radiology Pa v Diana St. Gerard

[*1] Consolidated Radiology Pa v Diana St. Gerard 2007 NY Slip Op 52204(U) [17 Misc 3d 134(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1692 N C.

Consolidated Radiology PA, Respondent,

against

Diana St. Gerard, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), dated August 21, 2006. The order denied defendant's motion to vacate a default judgment and to dismiss the complaint.

Order affirmed without costs.

Plaintiff commenced the instant action to recover for medical services it rendered to defendant. Defendant failed to interpose an answer or otherwise timely appear in the action. As a result, a default judgment was entered against defendant in the sum of $3,345.83. Defendant moved to vacate the default judgment and dismiss the complaint. The motion was denied by order dated August 21, 2006 and the instant
appeal ensued. A review of the record on appeal indicates that defendant failed to establish that she did not receive notice of the action in time to defend so as to come within the purview of CPLR 317. Moreover, defendant failed to establish either an excusable default or a meritorious defense (see CPLR 5015 [a] [1]; Fekete v Camp Skwere, 16 AD3d 544 [2005]; Caputo v Peton, 13 AD3d 474 [2004]). Accordingly, the lower court properly denied the motion.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 19, 2007