Cautious Care Med., P.C. v. 21st Century Ins. Co.

Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U)) [*1] Cautious Care Med., P.C. v 21st Century Ins. Co. 2021 NY Slip Op 50785(U) [72 Misc 3d 140(A)] Decided on August 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ 2020-464 K C Cautious Care Medical, P.C., as Assignee of White, Frank, Appellant, against 21st Century Insurance Company, Respondent. The Rybak Firm, PLLC (Damin J. Toell of and Karina Barska counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, granted the branches of defendant's motion seeking to vacate a judgment of that court entered September 25, 2018 upon defendant's failure to appear or answer the complaint, and to enlarge defendant's time to serve and file an answer. ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much an order of the Civil Court as granted the branches of defendant's motion seeking to vacate a judgment entered September 25, 2018 upon defendant's failure to appear or answer the complaint, and to enlarge defendant's time to serve and file an answer. To vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). The Civil Court found that defendant demonstrated both "a reasonable excuse and meritorious defense," and, on appeal, plaintiff limits its argument to defendant's excuse, specifically stating that it is unnecessary, under the circumstances presented, for this court to consider whether defendant demonstrated that it has a meritorious defense. "The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination" (Green Apple Mgt. Corp. v Aronis, 55 AD3d 669, 669 [2008]). In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant's practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant's affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant's practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default. Plaintiff's remaining appellate contentions are relevant only to the branch of defendant's motion seeking to dismiss the complaint, which was denied. Plaintiff is not aggrieved thereby and defendant has not cross-appealed from it. Accordingly, the order, insofar as appealed from, is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 6, 2021