|Right Solution Med. Supply, Inc. v Republic W. Ins. Co.|
|2018 NY Slip Op 51125(U) [60 Misc 3d 138(A)]|
|Decided on July 13, 2018|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Bryan, Cave, Leighton, Paisner, LLP (William T. O'Connell and Daniel Klein of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., 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 October 16, 2015. The order denied defendant's motion to vacate a default judgment of that court entered December 3, 2013 upon defendant's failure to proceed at trial.
ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment is granted.
In this action by a provider to recover assigned first-party no-fault benefits arising out of an accident that occurred on December 21, 2009, defendant moved to vacate a judgment, entered December 3, 2013, that had apparently been entered upon its failure to proceed at trial on December 17, 2012. In support of its motion, defendant submitted an affidavit by plaintiff's assignor in which plaintiff's assignor admitted that the December 21, 2009 accident underlying this no-fault proceeding had been staged, and an order dated April 26, 2013, from the Supreme Court, New York County, in a declaratory judgment action, entered on default, finding that defendant herein had no duty to pay any no-fault benefits to plaintiff herein and its assignor, among others, with respect to this accident. The Civil Court denied defendant's motion, finding that defendant had failed to establish a reasonable excuse for its failure to proceed at trial.
Defendant's motion should have been granted, as defendant demonstrated both a reasonable excuse for its failure to proceed at trial and a meritorious defense (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 ).
Accordingly, the order is reversed and defendant's motion to vacate the default judgment is granted.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.