Greenway Med. Supply Corp. v MVAIC

[*1] Greenway Med. Supply Corp. v MVAIC 2021 NY Slip Op 50303(U) Decided on April 9, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2020-106 K C

Greenway Medical Supply Corp., as Assignee of Cabrera, Iris, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J.Toell and Karina Barska of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rachel Freier, J.), entered July 22, 2019. The order granted defendant's motion to vacate a judgment of that court entered February 7, 2019 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) was served with the summons and complaint on October 12, 2018. Plaintiff filed proof of service of the summons and complaint on October 18, 2018 and subsequently applied to the clerk for a default judgment. A judgment was entered on February 7, 2019 upon defendant's claimed failure to appear or answer the complaint. Defendant moved to vacate the default judgment, alleging that its attorney had served an answer on plaintiff's attorneys by mail on November 1, 2018. A copy of the affidavit of service was annexed to defendant's motion papers. By order entered July 22, 2019, the Civil Court granted defendant's motion.

Defendant established that it timely appeared in the action by mailing the answer to plaintiff's attorney on November 1, 2018 (see CPLR 320 [a]; 2103 [b] [2]; CCA 2102; Goonan v New York City Tr. Auth., 74 AD3d 747 [2010]). While plaintiff's attorney claimed that her office did not receive the answer, her affirmation and the affidavit of counsel's employee were insufficient to rebut defendant's proof of service of the answer. Since defendant has established [*2]that it did not default, there was no basis for the entry of the judgment (see Goonan, 74 AD3d 747), and the Civil Court properly granted defendant's motion to vacate it (see Carlton v Vorosmarty, 163 AD2d 630 [1990]; Marazita v Nelbach, 91 AD2d 604 [1982]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 9, 2021