Right Solution Med. Supply, Inc. v. Republic W. Ins. Co.

Appellate Terms of the Supreme Court of New York

Right Solution Med. Supply, Inc. v. Republic W. Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 13, 2018

Docket2018 NYSlipOp 51125(U)

StatusPublished

This text of Right Solution Med. Supply, Inc. v. Republic W. Ins. Co. (Right Solution Med. Supply, Inc. v. Republic W. Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Right Solution Med. Supply, Inc. v. Republic W. Ins. Co., (N.Y. Ct. App. 2018).

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Opinion

Right Solution Medical Supply, Inc., as Assignee of Noemi E. De La Cruz, Respondent,

against

Republic Western Ins. Co., Appellant.

Bryan, Cave, Leighton, Paisner, LLP (William T. O'Connell and Daniel Klein of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 16, 2015. The order denied defendant's motion to vacate a default judgment of that court entered December 3, 2013 upon defendant's failure to proceed at trial.

ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits arising out of an accident that occurred on December 21, 2009, defendant moved to vacate a judgment, entered December 3, 2013, that had apparently been entered upon its failure to proceed at trial on December 17, 2012. In support of its motion, defendant submitted an affidavit by plaintiff's assignor in which plaintiff's assignor admitted that the December 21, 2009 accident underlying this no-fault proceeding had been staged, and an order dated April 26, 2013, from the Supreme Court, New York County, in a declaratory judgment action, entered on default, finding that defendant herein had no duty to pay any no-fault benefits to plaintiff herein and its assignor, among others, with respect to this accident. The Civil Court denied defendant's motion, finding that defendant had failed to establish a reasonable excuse for its failure to proceed at trial.

Defendant's motion should have been granted, as defendant demonstrated both a reasonable excuse for its failure to proceed at trial and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 13, 2018

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Right Solution Medical Supply, Inc., as Assignee of Noemi E. De La Cruz, Respondent,

against

Republic Western Ins. Co., Appellant.

Bryan, Cave, Leighton, Paisner, LLP (William T. O'Connell and Daniel Klein of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 16, 2015. The order denied defendant's motion to vacate a default judgment of that court entered December 3, 2013 upon defendant's failure to proceed at trial.

ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits arising out of an accident that occurred on December 21, 2009, defendant moved to vacate a judgment, entered December 3, 2013, that had apparently been entered upon its failure to proceed at trial on December 17, 2012. In support of its motion, defendant submitted an affidavit by plaintiff's assignor in which plaintiff's assignor admitted that the December 21, 2009 accident underlying this no-fault proceeding had been staged, and an order dated April 26, 2013, from the Supreme Court, New York County, in a declaratory judgment action, entered on default, finding that defendant herein had no duty to pay any no-fault benefits to plaintiff herein and its assignor, among others, with respect to this accident. The Civil Court denied defendant's motion, finding that defendant had failed to establish a reasonable excuse for its failure to proceed at trial.

Defendant's motion should have been granted, as defendant demonstrated both a reasonable excuse for its failure to proceed at trial and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 13, 2018

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