|Healthworx Med., P.C. v Auto One Ins. Co.|
|2017 NY Slip Op 50559(U) [55 Misc 3d 140(A)]|
|Decided on April 21, 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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Emilia I. Rutigliano, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 14, 2015. The order denied defendant's motion to vacate a prior order of the same court entered January 16, 2014 granting, on consent, plaintiff's motion for summary judgment, and the judgment entered pursuant thereto on February 20, 2014, and, upon such vacatur, for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, after one adjournment, the Civil Court, by order entered January 16, 2014, granted the motion without opposition from defendant. The order states, "[b]oth sides agreed to the above and will not appeal this order." A judgment was entered pursuant to that order on February 20, 2014. Subsequently, defendant moved to vacate the judgment and order, arguing that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] ), and, upon such vacatur, for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant's motion, finding that defendant had not provided a reasonable excuse for its default.
Since the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Hallock v State of New York, 64 NY2d 224 ; CCU, LLC v Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing. Accordingly, the order denying defendant's motion is affirmed, albeit on a different ground.
Pesce, P.J., Aliotta and Elliot, JJ., concur.