Bedford Med., P.C. v Millennium Med. Examinations/ Ind. Physicians Opinions, P.C.

[*1] Bedford Med., P.C. v Millennium Med. Examinations/ Ind. Physicians Opinions, P.C. 2015 NY Slip Op 50208(U) Decided on February 24, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., MARANO and GARGUILO, JJ.
2012-1614 N C

Bedford Medical, P.C., Appellant,

against

Millennium Medical Examinations/ Independent Physicians Opinions, P.C. Doing Business as AMERIMED INDEPENDENT EXAMINATIONS, Respondent.

Appeal from an order of the District Court of Nassau County, First District

(Terence P. Murphy, J.), dated February 10, 2012. 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 unpaid fees, defendant failed to timely appear or answer the complaint, and a default judgment was entered against it. Almost eight months after the default had been entered, defendant moved to vacate the default judgment, contending, as an excuse for its default, that it had been engaged in settlement negotiations with plaintiff and, as a meritorious defense to the action, that it had paid most of the invoices alleged by plaintiff to be outstanding. The District Court granted the motion and vacated the default judgment.

We find that the District Court improvidently exercised its discretion in vacating the default judgment since defendant failed to demonstrate both a reasonable excuse for its default and a meritorious defense (see Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Leifer v Pilgreen Corp., 62 AD3d 759 [2009]; Segovia v Delcon Constr. Corp., 43 AD3d 1143 [2007]; Canty v Gregory, 37 AD3d 508 [2007]). Reliance on purported settlement negotiations does not constitute a reasonable excuse for a party's failure to answer a complaint (see Kouzios v Dery, 57 AD3d 949 [2008]; Antoine v Bee, 26 AD3d 306 [2006]; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516 [2005]). Moreover, even assuming that defendant demonstrated a reasonable excuse for its default, it did not establish a meritorious defense, as defendant failed to provide any evidence in support of its defense of payment (see Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009]; Reilly-Whiteman, Inc. v Cherry Hill Textiles, 191 AD2d 486 [1993]; Lener v Club Med, 168 AD2d 433 [1990]; Capital One Bank v Erhabor, 20 Misc 3d 132[A], 2008 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.

Tolbert, J.P., Marano and Garguilo, JJ., concur.

Decision Date: February 24, 2015