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Omega Diagnostic Imaging, P.C. As Assignee of Shirlika Pierre v. Mvaic

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


March 2, 2011

OMEGA DIAGNOSTIC IMAGING, P.C. AS ASSIGNEE OF SHIRLIKA PIERRE,
RESPONDENT,
v.
MVAIC, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered May 8, 2009.

Omega Diagnostic Imaging, P.C. v MVAIC

Decided on March 2, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate a default judgment entered against it as a result of MVAIC's failure to submit written opposition to plaintiff's motion seeking summary judgment. The Civil Court held that MVAIC did not default because its counsel orally opposed plaintiff's motion seeking summary judgment. The Civil Court denominated MVAIC's motion as one seeking renewal or reargument and proceeded to deny the motion. This appeal by MVAIC ensued.

Contrary to the determination of the Civil Court, MVAIC defaulted because it failed to submit written opposition to plaintiff's motion for summary judgment (see CPLR 2219 [a]; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Millennium Med. Instruments v MVAIC, 27 Misc 3d 127[A], 2010 NY Slip Op 50583[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, MVAIC's motion properly sought to vacate the default judgment entered against it.

In support of its motion, under the circumstances presented, MVAIC established both a reasonable excuse for its default and the existence of a potentially meritorious defense. Accordingly, MVAIC's motion to vacate the default judgment entered against it should have been granted (see Strauss v R & K Envtl., 66 AD3d 766 [2009]; New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511 [2006]; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: March 02, 2011

20110302

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