Renelique v 21st Century Ins. Co.

[*1] Renelique v 21st Century Ins. Co. 2021 NY Slip Op 50521(U) Decided on June 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
2020-568 K C

Pierre Jean Jacques Renelique, as Assignee of Joel Auguste, Appellant,

against

21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 16, 2019. The order, insofar as appealed from as limited by the brief, granted the branch of defendant's motion seeking to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

This action by a provider to recover assigned first-party no-fault benefits was commenced by the filing of a summons and complaint on August 11, 2015 in Civil Court, Kings County. However, the summons indicated that the matter was to be heard in the Civil Court, Queens County, and required defendant to appear at the courthouse at 89-17 Sutphin Boulevard, Jamaica, New York. Defendant served an answer upon plaintiff on September 9, 2015, which listed the Civil Court, Queens County, as the venue in the caption, and the answer was allegedly filed there. Plaintiff thereafter moved for the entry of a default judgment against defendant, which motion was granted, without opposition, on December 3, 2018. A judgment in the total sum of $260.89 was entered on February 7, 2019.

Defendant moved to vacate the default judgment and to dismiss the complaint. In his affirmation in support, defense counsel stated, among other things, that the default judgment should be vacated and that plaintiff's complaint "should be dismissed outright based on the deficiencies" on the face of the summons, the fact that plaintiff never modified its summons and [*2]complaint and the fact that the Civil Court, Kings County, does not have jurisdiction over this matter.

In opposition, plaintiff's counsel argued that defendant failed to establish a reasonable excuse for its default or a meritorious defense.

In its reply affirmation, defense counsel argued that plaintiff's "opposition papers do nothing to dispel the notion that its complaint must be dismissed."

In an order entered August 16, 2019, the Civil Court granted the motion, vacated the default judgment and dismissed plaintiff's complaint, as it was "fatally defective."

As limited by its brief, plaintiff argues that so much of the August 16, 2019 order as dismissed the complaint should be reversed because dismissal of the complaint was not the proper remedy upon the vacatur of the default judgment. Rather, plaintiff should have been permitted to correct its error pursuant to CPLR 2001.

Plaintiff's argument, that it should have been afforded an opportunity to amend the complaint pursuant to CPLR 2001, is unpreserved for appellate review, as plaintiff failed to raise the issue in opposition to defendant's motion (see Gerschel v Christensen, 128 AD3d 455 [2015]; Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 4, 2021