Manhattan Med. Imaging, P.C. v Nationwide Ins. Co.

[*1] Manhattan Med. Imaging, P.C. v Nationwide Ins. Co. 2010 NY Slip Op 50584(U) [27 Misc 3d 127(A)] Decided on March 31, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-1940 K C.

Manhattan Medical Imaging, P.C. a/a/o ANDREA ORTIZ, MARTHA BETRIZ CABRERA, GANDY GUZMAN and AMARILIS SALAZAR, Respondent,

against

Nationwide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila P. Gold, J.), entered June 19, 2008. The order, insofar as appealed from as limited by the brief, (1) denied the branch of defendant's motion seeking to vacate four orders dated November 30, 2007 granting, upon defendant's default, plaintiff's four motions for summary judgment, and, upon such vacatur, to deny plaintiff's four motions for summary judgment, and (2) denied the branch of defendant's motion seeking leave to renew the prior motions.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

Plaintiff commenced four actions against defendant to recover assigned first-party no-fault benefits and, thereafter, moved for summary judgment in each action. In June 2007, the parties stipulated to adjourn the motions until November 30, 2007, and defendant agreed to serve its opposition papers by September 30, 2007. In July 2007, the parties stipulated to consolidate the four actions into one. Defendant served its opposition papers in November 2007, but the Civil Court would not consider them on the ground that they were untimely. By four separate orders dated November 30, 2007, the court granted plaintiff's motions for summary judgment on default, finding that plaintiff had established its prima facie entitlement to summary judgment with respect to each motion. In December 2007, defendant moved to, among other things, vacate its default and/or for leave to renew/reargue the prior motions. Defendant's motion was denied by order entered June 19, 2008, and the instant appeal by defendant ensued.

A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an [*2]excuse (see CPLR 2005) if the facts submitted in support thereof are in evidentiary form and sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). By its June 19, 2008 order, the Civil Court correctly found defendant's law office failure excuse to be disingenuous and insufficient to justify the default. Consequently, so much of the order as denied the branch of defendant's motion seeking to vacate its default is affirmed.

Furthermore, so much of the June 19, 2008 order as denied the branch of defendant's motion seeking leave to renew is affirmed. Defendant cannot renew a motion upon which it defaulted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010