Hospital for Joint Diseases v. Dollar Rent A Car

25 A.D.3d 534, 806 N.Y.S.2d 437

Opinion

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated December 14, 2004, as granted that branch of the defendant’s motion which was to vacate a prior order of the same court dated July 29, 2004, granting their motion for summary judgment upon the defendant’s default in opposing the motion.

Ordered that the order is affirmed insofar as appealed from, with costs.

Based on, inter alia, (a) the reasonable excuse presented by the defendant for its default in opposing the plaintiffs’ motion for summary judgment, including the absence of willfulness and the lack of prejudice to the plaintiffs, and (b) the existence of a possible meritorious defense, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to vacate the order dated July 29, 2004, granting the plaintiffs’ unopposed motion for summary judgment (see CPLR 5015 [a]; see Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574 [2004]; Presbyterian Hosp. in City of N.Y. v Empire Ins. Co., 220 AD2d 733, 734 [1995]). Schmidt, J.P., Mastro, Spolzino and Lunn, JJ., concur.