|S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co.|
|2017 NY Slip Op 50551(U) [55 Misc 3d 139(A)]|
|Decided on April 11, 2017|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 15, 2014. The order, insofar as appealed from, denied plaintiff's motion to enter a default judgment and granted the branch of defendant's cross motion seeking to compel plaintiff to accept an untimely answer.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking to compel plaintiff to accept an untimely 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, defendant failed to timely answer. Plaintiff subsequently moved for leave to enter a default judgment, pursuant to CPLR 3215, and defendant cross-moved to, among other things, compel plaintiff to accept an untimely answer previously served, which answer included the affirmative defense of lack of personal jurisdiction. Plaintiff appeals from so much of an order of the Civil Court as denied its motion and granted the aforestated branch of defendant's cross motion.
The branch of defendant's cross motion seeking to compel plaintiff to accept the untimely answer should have been denied. "A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action, when opposing a motion for leave to enter judgment upon its failure to appear or answer and moving to extend the time to answer or to compel the acceptance of an untimely answer" (Lipp v Port Auth. of NY & N.J., 34 AD3d 649, 649 ; see also Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969 ; Kennedy v City of New York, 114 AD3d 831, 832 ; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 ). Here, defendant essentially concedes that it did neither, and so that branch of its cross motion should have been denied.
However, plaintiff's motion for leave to enter a default judgment was properly denied. Plaintiff's affidavit of service demonstrates that service was made in Hauppage, which is in Suffolk County, outside the City of New York. Section 403 of the New York City Civil Court Act provides that service "shall be made only within the city of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state." Plaintiff appears to be arguing that defendant is not a resident of the City and, thus, to be implicitly arguing that the service was valid pursuant to CCA 404, which provides for service outside the City upon nonresidents in certain enumerated instances. However, defendant's position is that it is a [*2]resident of the City of New York, in which case, pursuant to CCA 403, service was invalid. As neither plaintiff's complaint nor its motion papers set forth any facts allowing for jurisdiction to be acquired over defendant by service outside the City of New York pursuant to CCA 404 (see All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677 [App Term, 2d Dept, 9th & 10th Jud Dists 1970]), plaintiff has failed to show that service had been validly effectuated, and, thus, plaintiff failed to establish its entitlement to a default judgment. Consequently, its motion was properly denied (see CPLR 3215; TCIF REO GCM, LLC v Walker, 139 AD3d 704 ; Dupps v Betancourt, 99 AD3d 855 ; Klein v Educational Loan Servicing, LLC, 71 AD3d 957 ).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking to compel plaintiff to accept the untimely answer is denied.
Pesce, P.J., Weston and Aliotta, JJ., concur.