Hu-Nam-Nam v. Auto One Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 2017
• Docket: 2017 NYSlipOp 51781(U)
• Status: Published

Opinion

Hu-Nam-Nam, M.D., as Assignee of Mercado Jose, Respondent,

against

Auto One Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 2, 2014. The order granted plaintiff's motion to enter a default judgment and denied defendant's cross motion to open its default in answering and to compel plaintiff to accept a late answer.

ORDERED that the order is reversed, with $30 costs, plaintiff's motion to enter a default judgment is denied, and defendant's cross motion to open its default in answering and to compel plaintiff to accept a late answer is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff's motion to enter a default judgment and denied defendant's cross motion to open its default and to compel plaintiff to accept a late answer.

It is well settled that in order to open a default in answering, the defendant must demonstrate both a reasonable excuse for its delay in appearing and answering the complaint as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Here, defendant established a reasonable excuse for its failure to serve an answer (see Vardaros v Zapas, 105 AD3d 1037 [2013]) and made a prima facie showing of a viable defense based on a lack of medical necessity.

Accordingly, the order is reversed, plaintiff's motion to enter a default judgment is denied, and defendant's cross motion to open its default in answering and to compel plaintiff to accept a late answer is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017