A.B. Med., PLLC v Cna Ins. Co.
2015 NY Slip Op 50199(U) [46 Misc 3d 144(A)]
Decided on February 23, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2015

2013-1484 K C

A.B. Medical, PLLC as Assignee of DERRIK LAWSON, Appellant, -


CNA Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 29, 2013. The order, insofar as appealed from, denied plaintiff's motion to vacate a prior order of the same court entered October 24, 2011 granting, on default, defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 24, 2011, granted, on default, defendant's motion for summary judgment dismissing the complaint, noting that the parties had entered into a stipulation, which set a schedule for serving opposition and reply papers, and declining to consider plaintiff's late opposition to the motion. Almost 10 months later, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the October 24, 2011 default order. Defendant opposed plaintiff's motion, and cross-moved for costs and sanctions. Plaintiff appeals from so much of an order of the Civil Court entered April 29, 2013 as denied its motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant's prior motion, pursuant to the parties' stipulation. In support of plaintiff's motion to vacate the default order, plaintiff's attorney alleged that her late submission of an affirmation in opposition to defendant's motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff's attorney offered no reason for waiting almost 10 months to move to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: February 23, 2015