Edwards Ambulance Service Inc., filed the instant action on October 6, 2017. The affidavit of service dated October 18, 2017, indicates the defendant was properly served by personal service by Carl Lane who appears to work for the Herkimer County Sheriff. There is also an Affidavit of Mailing of a Copy of the Summons to the Defendant which is signed by Michael Schofield and dated October 23, 2017. Attached to Summons and Complaint was an Affidavit of Facts Constituting the Claim, the Default, and the Amount Due which is signed by M. P. Schofield on October 23, 2017. Upon the defendant's default, the clerk entered a default judgment against defendant on November 20, 2017, and a transcript of judgment on December 5, 2017, in the amount of $2,347.19.

On October 12, 2022, the Defendant submitted the instant Order to Show Cause to relieve the Defendant of the default judgment because she "never received the court papers."

The Defendant went on to list "the following meritorious defense(s): a. The contract is unfair (unconscionable). b. The Plaintiff waited too long to bring this case (laches). c. Violation of the duty of good faith and fair dealing." She went on to explain "[a]s soon as I found out about the judgement my Father and I called both the attorney's office and Edwards Ambulance to explain things and were not treated fairly. Edwards Ambulance admitted twice that they do not have the billing for this accident eleven years ago." She also submitted an Answer dated October 12, 2022.

In the context of a default, an application may be made to the clerk to enter a default if the "claim is for a sum certain or for a sum which can by computation be made certain" (CPLR § 3215[a]). An "affidavit made by the party" is sufficient proof for an award of damages (CPLR § 3215[f]). It is clear that the proper procedure was followed for the entry of the judgment under review.

However, a defaulting defendant may make an application to be relieved of their default under either CPLR § 317 or CPLR § 5015. CPLR § 5015 (a) (1) provides relief for an "excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry". CPLR § 317 applies when the Defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense." More than one year has passed so the relevant provision is CPLR § 317.

In this case, the Court finds that the affidavit of personal service by an employee of the Sheriff indicates that the Defendant was properly served. The defendant has not submitted any documentary proof in support of her meritorious defenses. Simply having insurance would not preclude the ambulance service from charging for things which are not covered by the insurance plan. Also, to the extent the Defendant's plan covers these services, it does not change the fact that the Claimant is entitled to payment for their services. Any dispute on insurance payments or lack thereof is an independent issue between the Defendant and her insurance company.

On the evidence before the Court, it is hereby ORDERED:

1. That the Defendant's Order to Show Cause filed on October 12, 2022, is hereby DENIED.

This is the Decision and Order of this Court.