Westchester Medical Center v. ELRAC, Inc.

Appellate Division of the Supreme Court of New York

Westchester Medical Center v. ELRAC, Inc.

301 A.D.2d 518, 753 N.Y.S.2d 387, 2003 N.Y. App. Div. LEXIS 165

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 13, 2003

StatusPublished

Cited by5 cases

This text of 301 A.D.2d 518 (Westchester Medical Center v. ELRAC, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Westchester Medical Center v. ELRAC, Inc., 301 A.D.2d 518, 753 N.Y.S.2d 387, 2003 N.Y. App. Div. LEXIS 165 (N.Y. Ct. App. 2003).

Pincite

Opinion

—In an action to recover unpaid no-fault benefits, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), entered January 3, 2002, as granted the defendant’s motion to vacate a judgment of the same court entered May 10, 2001, upon its default in appearing or answering, which was in favor of the plaintiffs Westchester Medical Center and Mary Immaculate Hospital and against it.

Ordered that the appeal by the plaintiff New York and Pres[519]*519byterian Hospital is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as appealed from by the plaintiffs Westchester Medical Center and Mary Immaculate Hospital, on the law, the motion is denied, and the judgment is reinstated; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs Westchester Medical Center and Mary Immaculate Hospital.

A defendant seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Fidelity & Deposit Co. of Md. v Arthur Andersen & Co., 60 NY2d 693, 695; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Cilindrello v Rayabin, 297 AD2d 699. The unsubstantiated allegations of the defendant’s counsel that a claims representative led him to believe that the action had been settled or withdrawn does not constitute a reasonable excuse for the default in answering the complaint (see Flora Co. v Ingilis, 233 AD2d 418; Kyriacopoulos v Mendon Leasing Corp., 216 AD2d 532; Morris v Metropolitan Transp. Auth., 191 AD2d 682). Furthermore, the record demonstrates a pattern of default or neglect even after the defendant’s failure to appear in this action (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553; Eretz Funding v Shalosh Assoc., 266 AD2d 184). Accordingly, the motion to vacate the default should have been denied. Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to recover unpaid no-fault benefits, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), entered January 3, 2002, as granted the defendant’s motion to vacate a judgment of the same court entered May 10, 2001, upon its default in appearing or answering, which was in favor of the plaintiffs Westchester Medical Center and Mary Immaculate Hospital and against it.

Ordered that the appeal by the plaintiff New York and Pres[519]*519byterian Hospital is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as appealed from by the plaintiffs Westchester Medical Center and Mary Immaculate Hospital, on the law, the motion is denied, and the judgment is reinstated; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs Westchester Medical Center and Mary Immaculate Hospital.

A defendant seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Fidelity & Deposit Co. of Md. v Arthur Andersen & Co., 60 NY2d 693, 695; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Cilindrello v Rayabin, 297 AD2d 699. The unsubstantiated allegations of the defendant’s counsel that a claims representative led him to believe that the action had been settled or withdrawn does not constitute a reasonable excuse for the default in answering the complaint (see Flora Co. v Ingilis, 233 AD2d 418; Kyriacopoulos v Mendon Leasing Corp., 216 AD2d 532; Morris v Metropolitan Transp. Auth., 191 AD2d 682). Furthermore, the record demonstrates a pattern of default or neglect even after the defendant’s failure to appear in this action (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553; Eretz Funding v Shalosh Assoc., 266 AD2d 184). Accordingly, the motion to vacate the default should have been denied. Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

301 A.D.2d 518, 753 N.Y.S.2d 387, 2003 N.Y. App. Div. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westchester-medical-center-v-elrac-inc-nyappdiv-2003.

Opinion

Related

Cite This Page — Counsel Stack