Modern Art Med., P.C. v M.V.A.I.C.

[*1] Modern Art Med., P.C. v M.V.A.I.C. 2012 NY Slip Op 50759(U) Decided on April 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

Modern Art Medical, P.C. as Assignee of TANIA DEGUZMAN, Appellant,

against

M..A.I.C., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010. The order denied plaintiff's motion for leave to enter a default judgment and granted defendant's cross motion to vacate its default and compel acceptance of defendant's late answer.

ORDERED that the order is modified by providing that defendant's cross motion to vacate its default and compel acceptance of defendant's late answer is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied its motion for leave to enter a default judgment and granted defendant's cross motion to vacate its default and compel acceptance of defendant's late answer.

When a defendant who has failed to timely answer the complaint seeks to compel acceptance of his late answer, he must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see Lipp v Port Auth. of NY & N.J., 34 AD3d 649 [2006]; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356 [2005]). In the instant case, defendant failed to demonstrate a reasonable excuse for its default because the affidavit executed by defendant's claim representative made no attempt to explain why defendant had failed to timely answer. To the extent defendant's counsel attempted to do so, her affirmation was of no probative value as she did not establish that she possessed personal knowledge of the pertinent facts giving rise to defendant's delay in notifying counsel of the existence of this action (see Juseinoski, 15 AD3d 353). In light of the foregoing, defendant's cross motion to vacate its default and compel acceptance of its late answer should have been denied.

Contrary to plaintiff's contention, its motion for leave to enter a default judgment was properly denied because the motion was supported by an affirmation from plaintiff's counsel and a complaint which was verified by an attorney. Thus, plaintiff failed to demonstrate its entitlement to a default judgment (see CPLR 3215 [f]; Juseinoski, 15 AD3d 353). [*2]

Accordingly, the order is modified by providing that defendant's cross motion to vacate its default and compel acceptance of defendant's late answer is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 25, 2012