New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
August 6, 2012
MODERN ART MEDICAL, P.C. AS ASSIGNEE OF INDIRA INFANTE AND LISSETE OZUNA, APPELLANT,
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010.
Modern Art Med., P.C. v M.V.A.I.C.
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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2012
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ
The order denied plaintiff's motion for leave to enter a default judgment and granted defendant's cross motion to open its default and compel the acceptance of its late answer.
ORDERED that the order is modified by providing that defendant's cross motion to open its default and compel the acceptance of its late answer is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied its motion for leave to enter a default judgment and granted defendant's cross motion to open its default and compel the acceptance of its late answer.
When a defendant who has failed to timely answer the complaint seeks to compel the acceptance of his late answer, he must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see Lipp v Port Auth. of NY & N.J., 34 AD3d 649 ; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356 ). In the instant case, defendant failed to demonstrate a reasonable excuse for its default because the affidavit executed by defendant's claim representative made no attempt to explain why defendant had failed to timely answer. To the extent defendant's counsel attempted to do so, her affirmation was of no probative value as she did not establish that she possessed personal knowledge of the pertinent facts giving rise to defendant's delay in notifying counsel of the existence of this action (see Juseinoski, 15 AD3d 353). In light of the foregoing, defendant's cross motion to open its default and to compel the acceptance of its late answer should have been denied.
Plaintiff's motion for leave to enter a default judgment was supported by an affirmation from plaintiff's counsel and the complaint, which had been verified by an attorney. Thus, plaintiff failed to demonstrate its entitlement to a default judgment since plaintiff's counsel did not establish that he possessed personal knowledge of the facts (see CPLR 3215 [f]; Triangle Props. # 2, LLC v Narang, 73 AD3d 1030 ; Juseinoski, 15 AD3d 353).
Accordingly, the order of the Civil Court is modified by providing that defendant's cross motion to open its default and compel the acceptance of its late answer is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012
© 1992-2012 VersusLaw Inc.