Viviane Etienne Med. Care, P.C. v Alea N. Am. Ins. Co.

[*1] Viviane Etienne Med. Care, P.C. v Alea N. Am. Ins. Co. 2010 NY Slip Op 52011(U) [29 Misc 3d 136(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-718 K C.

Viviane Etienne Medical Care, P.C. as Assignee of MARIE HOWARD, Appellant,

against

Alea North America Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered September 10, 2008. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion to vacate a default
judgment.

In order to vacate a default judgment on the ground of excusable default, a defendant is required to establish both a reasonable excuse for its default and a meritorious defense to the action (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]).
In support of its motion, defendant submitted an affidavit from a claims adjuster employed by defendant's third-party claims administrator, who averred that her company had become aware of this action on or about January 26, 2007 when it had received copies of the summons and complaint. The administrator tried to locate the underlying claim file but was delayed in doing so because the file was in the process of being transferred to the insurance company that had just purchased the subject insurance policy from defendant. The administrator finally obtained the claim file on or about August 1, 2007 and only then assigned counsel, who served plaintiff with an answer on August 15, 2007.

Based on the above facts, defendant failed to proffer a reasonable excuse for its default. A party in jeopardy of defaulting for nonappearance in an action may request an extension of time to file its answer upon good cause shown (see CPLR 2004). Failure to move pursuant to CPLR 2004 for an extension of time to file an answer may eviscerate the grounds for a reasonable excuse (cf. Builders Mechanic Co. v Claiborne, 277 AD2d 193 [2000]; Weiss v Kahan, 209 AD2d 611, 612 [1994]). Here, defendant was served with the summons and complaint on January 15, 2007 and its third-party claims administrator received a copy of the summons and complaint on January 26, 2007. Thereafter, both defendant and its third-party [*2]claims administrator knowingly failed to take any action with respect to this lawsuit for approximately eight months. In the interim, plaintiff applied for a default judgment in March 2007, and a default judgment was entered on September 6, 2007.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in granting defendant's motion to vacate the default judgment. Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010