Central Radiology Servs., P.C. v First Am. Ins. (2013 NY Slip Op 51031(U))

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 7, 2010. The order, insofar as appealed from, (1) upon, in effect, granting the branches of defendant’s motion seeking leave to reargue or, in the alternative, to renew its prior motion to vacate an order of the same court (William A. Viscovich, J.) entered December 19, 2008, which had granted plaintiff’s unopposed motion for leave to enter a default judgment, adhered to the prior determination denying such vacatur, and (2) upon, in effect, granting the branch of defendant’s motion seeking leave to reargue its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), adhered to the prior determination denying the motion.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff obtained leave to enter a default judgment against defendant pursuant to an order of the Civil Court (William A. Viscovich, J.) entered December 19, 2008. Defendant then moved pursuant to CPLR 5015 (a) (1) to vacate the order and permit it to defend the action. Two months later, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In support of the [*2]latter motion, defendant alleged, among other things, that plaintiff had failed to serve process upon defendant and, instead, had mistakenly served defendant’s third-party claims administrator. By order entered February 2, 2010, the Civil Court (Rudolph E. Greco, Jr., J.) denied both of defendant’s motions.

Thereafter, defendant moved for 1) leave to reargue or, in the alternative, to renew its prior motion to vacate the December 19, 2008 order and, upon reargument or, in the alternative, renewal, to vacate said order, and 2) leave to reargue its prior motion to dismiss the complaint and, upon reargument, to dismiss the complaint.

By order entered April 7, 2010, the Civil Court (Rudolph E. Greco, Jr., J.), upon, in effect, granting defendant leave to reargue and renew its prior motion to vacate the December 19, 2008 order, adhered to its prior determination denying such vacatur. Additionally, the court, upon, in effect, granting defendant leave to reargue its prior motion to dismiss the complaint, adhered to its prior determination denying the motion.

The Civil Court properly denied the branch of defendant’s motion seeking, upon reargument, to dismiss the complaint. A defendant’s voluntary participation in litigation in which the lack of jurisdiction could be, but was not, raised constitutes a submission to the jurisdiction of the courts (see generally Gager v White, 53 NY2d 475, 488 [1981]; Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In the instant case, defendant submitted to the jurisdiction of the court when, in its initial motion, it sought to vacate the December 19, 2008 order, and permit it to “defend this action on the merits,” rather than seeking to dismiss the complaint for lack of jurisdiction (see Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U]).

The Civil Court also properly denied the branch of defendant’s motion seeking, upon reargument, to vacate the December 19, 2008 order pursuant to CPLR 5015 (a) (1). A movant seeking to vacate a default based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and 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]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]; Solomon v Ramlall, 18 AD3d 461 [2005]). Defendant failed to demonstrate a meritorious defense as it did not submit adequate proof to raise a question of fact regarding whether the assignor had been acting within the course of her employment when the accident had occurred. The affidavit of defendant’s third-party claims administrator merely alleged in a conclusory manner that the assignor “was injured during the course of her employment and therefore, workers’ compensation was primary for this loss,” without substantiating this assertion with any evidence (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 17, 2013