Art of Healing Medicine, P.C. v Global Liberty Ins. Co. of N.Y.

[*1] Art of Healing Medicine, P.C. v Global Liberty Ins. Co. of N.Y. 2020 NY Slip Op 51433(U) Decided on November 20, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-1291 K C

Art of Healing Medicine, P.C., as Assignee of Sobir Uzakov, Respondent,

against

Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Mark Petre and Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rachel E. Freier, J.), entered July 9, 2019. The order denied defendant's motion to, among others things, vacate a judgment of that court entered May 15, 2018 upon defendant's failure to appear or answer the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered July 9, 2019 denying defendant's motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered May 15, 2018 upon defendant's failure to appear or answer the complaint. The court found that defendant had failed to establish a reasonable excuse for its default.

A defendant seeking to vacate a default judgment based on excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Here, defendant admitted that the summons and complaint were personally delivered to it on November 29, 2017 and that those documents were scanned into defendant's computer database at that time. The sole explanation defendant offers for failing to appear or answer the complaint is that "due to the high volume of claims," defendant's claim adjuster did not review the summons and complaint for six months, until notice of the default was received. Almost two additional months elapsed before defendant moved to vacate the default judgment. Consequently, defendant failed to demonstrate a reasonable excuse for its default (see Weitzenberg v Nassau County Dept. of Recreation & Parks, 282 AD2d 741, 742-7[*2]43 [2001]) and, therefore, it is not necessary to consider whether defendant offered a potentially meritorious defense to the action (see Deutsch Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 20, 2020