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Interboro Insurance Co. v. Perez

Supreme Court of New York, First Department

December 12, 2013

Interboro Insurance Company, Plaintiff-Appellant,
v.
Dahiana Perez, et al., Defendants, KHL Acupuncture, P.C., et al., Defendants-Respondents.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondents.

Gonzalez, P.J., Andrias, Saxe, Richter, Clark, JJ.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 12, 2013, which denied plaintiff's motion for leave to enter a default judgment against all defendants and granted the cross motion of defendants-respondents KHL Acupuncture, P.C. and South Shore Osteopathic Medicine, P.C., to compel acceptance of their answers, unanimously affirmed, without costs.

In this action for a declaration that no-fault insurance coverage does not exist, based solely on defendant Perez's failure to appear for an examination under oath (EUO), the motion court providently exercised its discretion in granting defendants-respondents' cross motion to compel plaintiff to accept their belated answers (see CPLR 3012[d]). The affirmation from respondents' attorney sufficiently explained that the minimal delay was due to a computer inputting error in her office (Smoke v Windermere Owners, LLC, 109 A.D.3d 742 [1st Dept 2013]; Goldman v Cotter, 10 A.D.3d 289, 291 [1st Dept 2004]). We note that respondents' counsel acted promptly upon discovering the error, there is no history of willful neglect, and plaintiff suffered no prejudice.

Contrary to plaintiff's contention, a meritorious defense is not required to obtain relief under CPLR 3012(d) (see Smoke, 109 A.D.3d at 289). In any event, respondents made such a showing by demonstrating that there is insufficient evidence that defendant Perez was properly notified of the EUOs. The affidavit of service submitted in support of plaintiff's motion for a default judgment was insufficient to satisfy its burden of establishing that the EUO scheduling letters were mailed in accordance with the No-Fault implementing regulations (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560 [1st Dept 2011], lv denied 17 N.Y.3d 705 [2011]). Plaintiff also failed to provide objective proof of mailing establishing that the letters were mailed to Perez (see Szaro v New York State Div. of Hous. & Community Renewal, 13 A.D.3d 93, 94 [1st Dept 2004]). Accordingly, the motion court also properly denied plaintiff's motion for a default judgment (see CPLR 3215[f]).

We have considered plaintiff's remaining arguments and find them unavailing.


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