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St. Vincent's Hospital & Medical Center v. Hanover Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 3, 2009

ST. VINCENT'S HOSPITAL & MEDICAL CENTER, ETC., ET AL., APPELLANTS,
v.
HANOVER INSURANCE COMPANY, RESPONDENT.

In an action to recover no-fault medical benefits under insurance contracts, the plaintiffs, St. Vincent's Hospital & Medical Center and Mount Sinai Hospital, appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated September 5, 2008, which denied the motion of the plaintiff St. Vincent's Hospital & Medical Center to hold the defendant in contempt for failure to comply with an information subpoena, and granted the defendant's cross motion, inter alia, to vacate a judgment of the same court entered January 24, 2008, upon its default in appearing or answering the complaint, which was in favor of the plaintiff St. Vincent's Hospital & Medical Center and against the defendant in the principal sum of $72,721.53.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

FRED T. SANTUCCI, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN & CHERYL E. CHAMBERS, JJ.

(Index No. 18119/07)

DECISION & ORDER

ORDERED that the appeal by the plaintiff Mount Sinai Hospital is dismissed, as it is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is affirmed on the appeal by the plaintiff St. Vincent's Hospital & Medical Center; and it is further,

ORDERED that one bill of costs is awarded to the defendant payable by the plaintiff St. Vincent's Hospital & Medical Center.

Under the circumstances of this case, the Supreme Court properly exercised its discretion in vacating the default judgment (see New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442; see also DeStaso v Bottiglieri, 52 AD3d 453). The remaining contentions of the plaintiff St. Vincent's Hospital & Medical Center are without merit (see CPLR 3211[a][1]; Wheels Am. N.Y., Ltd. v Montalvo, 50 AD3d 1130), or not properly before this Court.

SANTUCCI, J.P., ANGIOLILLO, BELEN and CHAMBERS, JJ., concur.

20090203

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