Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co.

[*1] Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co. 2010 NY Slip Op 52008(U) [29 Misc 3d 136(A)] Decided on November 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1451 K C.

Astoria Wellness Medical, P.C. as Assignee of HUBERT SANTOS, Respondent,

against

State Farm Mutual Auto Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered April 10, 2008. The order denied defendant's motion to vacate an order entered May 23, 2007 granting plaintiff's prior motion for summary judgment on default, and, in effect, the judgment entered pursuant thereto.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion to vacate a prior order granting plaintiff's motion for summary judgment upon defendant's failure to file opposition papers. A judgment was subsequently entered pursuant to the underlying order.

"Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion" (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]). In this case, defendant appropriately moved to vacate the order entered on default (see id.).

To vacate an order upon default, the movant is required to establish both a reasonable excuse for its default and a meritorious defense to the motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]; A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). A court may exercise its discretion and accept a claim of law office failure as a reasonable excuse (see CPLR 2005), provided the facts submitted in support thereof, in evidentiary form, are sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 443 [2004]; see Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). Defendant's excuse of law office failure was not reasonable under the circumstances presented. Defendant failed to adequately explain why it did not re-file its opposition papers in the correct Civil Court part after the court clerk had notified defendant of its filing error and had provided it with instructions on [*2]how to properly re-file. Accordingly, the order of the Civil Court is affirmed.

Rios, J.P., Pesce, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the order entered April 10, 2008 and grant defendant's motion to vacate the order entered May 23, 2007 and, in effect, the judgment entered pursuant thereto, in the following memorandum:

Contrary to the majority, I find that defendant has sufficiently established an excusable default and that there was no prejudice to plaintiff in any sense of the word. Defendant had agreed with plaintiff and the Civil Court to both serve and file a copy of its opposition papers by a certain date.

Although defendant had agreed to submit its opposition by a certain date, its opposition papers were not served and filed until after the agreed-upon date, which was nevertheless still prior to the return date of the motion. There was more than ample time for plaintiff to reply to those opposing papers prior to the return date if plaintiff so chose. Plaintiff did not.

I find that defendant's failure to submit the opposition papers by the agreed-upon date was de minimis and without any prejudice to plaintiff. It also appears that defendant mistakenly filed the court's copy in the same calendar part as plaintiff's motion. I do not find this ministerial error to be grievous fault, and it should not be treated so severely.

It should be further noted that the affidavit of plaintiff's third-party billing manager failed to establish that the affiant had sufficient knowledge of plaintiff's billing procedures to warrant those bills being considered as evidence of the treatment allegedly performed. Plaintiff also failed to properly establish that it had mailed the bills to defendant in the first instance (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). This was more than sufficient to establish defendant's meritorious defense.
Decision Date: November 17, 2010