| Amaze Med. Supply, Inc. v Lumbermens Mut. Cas. Co. |
| 2004 NY Slip Op 51110(U) |
| Decided on October 1, 2004 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 by plaintiff from an order of the Civil Court, Kings County (J. Battaglia, J.), entered October 24, 2003, which denied its application for leave to enter a default judgment and granted defendant's cross motion to compel plaintiff to accept defendant's late answer.
Order unanimously reversed without costs, plaintiff's motion for leave to enter a default judgment granted and defendant's cross motion to compel plaintiff to accept a late answer denied.
A review of the record establishes that jurisdiction was acquired by service of process upon the Superintendent of Insurance pursuant to Insurance Law § 1212. As a result, in seeking to compel plaintiff to accept defendant's late answer and to oppose plaintiff's motion for leave to enter a default judgment based upon defendant's failure to appear or answer, defendant was obligated to demonstrate a reasonable excuse for the delay and the existence of a meritorious defense (see Batista v Allstate Ins. Co., 289 AD2d 519 [2001]; Singh v Friedson, 288 AD2d 292 [2001]). Assuming arguendo that defendant established a reasonable excuse for its delay, it failed to demonstrate the existence of a meritorious defense. In this action seeking to recover assigned first-party no-fault benefits, defendant did not present evidence in admissible form [*2]demonstrating that it made a timely request for verification and that plaintiff failed to provide verification in response thereto (see e.g. New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]). Moreover, even if defendant was not precluded from raising the defense of lack of medical necessity (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139 [A], 2004 NY Slip Op 50279 [U] [App Term, 2d & 11th Jud Dists]), inasmuch as defendant failed to submit an affidavit by one with personal knowledge of the facts, defendant did not establish that said defense was meritorious (see A.B. Med. Servs. v Lumbermens Mut. Cas. Co., ___ Misc 3d ___, 2004 NY Slip Op 24194 [U] [App Term, 2d & 11th Jud Dists]). Consequently, the court should have granted plaintiff's motion for leave to enter a default judgment and denied defendant's cross motion to compel plaintiff to accept defendant's answer (see Andrade v Ranginwala, 297 AD2d 691 [2002]; Singh, 288 AD2d 292; Batista, 289 AD2d 519).
Decision Date: October 01, 2004