JFL Med. Care, P.C. v. Metlife Auto & Home

69 Misc. 3d 140(A), 2020 NY Slip Op 51334(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 6, 2020
• Docket: 2018-2042 K C
• Status: Unpublished

Opinion

JFL Med. Care, P.C. v Metlife Auto & Home (2020 NY Slip Op 51334(U)) [*1]

JFL Med. Care, P.C. v Metlife Auto & Home

2020 NY Slip Op 51334(U) [69 Misc 3d 140(A)]

Decided on November 6, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 6, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2042 K C

JFL Medical Care, P.C., as Assignee of Henry, Richard, Appellant,

against

Metlife Auto & Home, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Fishkin & Associates, LLC (William Ross Van Tuyl of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered August 22, 2018. The order granted defendant's motion to open its default in appearing or answering the complaint and to compel plaintiff to accept defendant's late answer.

ORDERED that the order is affirmed, with $25 costs.

A defendant seeking to open a default in appearing or answering the complaint based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially 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]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

Contrary to plaintiff's contention, the Civil Court did not improvidently exercise its discretion in finding that defendant had established a reasonable excuse for not timely answering the complaint. Further, defendant demonstrated that it had a potentially meritorious defense.

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020