February 23, 2015

A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))

Headnote

The relevant facts in this case were that the plaintiff, A.B. Medical, PLLC, had filed a motion to vacate a prior order granting the defendant's motion for summary judgment on default. The plaintiff's motion was denied by the Civil Court, and the plaintiff then appealed from this decision. The main issue decided was whether the plaintiff had a reasonable excuse for its default in failing to timely submit written opposition to the defendant's motion for summary judgment. The court held that the plaintiff failed to demonstrate a reasonable excuse for the default, as the plaintiff's attorney's explanation of a heavy workload amounted to mere neglect and was not accepted as an excusable default. Additionally, the plaintiff's attorney offered no reason for waiting almost 10 months to move to vacate the default order. Therefore, the order denying the plaintiff's motion was affirmed.

Reported in New York Official Reports at A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))

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

A.B. Medical, PLLC as Assignee of DERRIK LAWSON, Appellant, –
against
CNA Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 29, 2013. The order, insofar as appealed from, denied plaintiff’s motion to vacate a prior order of the same court entered October 24, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

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, the Civil Court, by order entered October 24, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, noting that the parties had entered into a stipulation, which set a schedule for serving opposition and reply papers, and declining to consider plaintiff’s late opposition to the motion. Almost 10 months later, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the October 24, 2011 default order. Defendant opposed plaintiff’s motion, and cross-moved for costs and sanctions. Plaintiff appeals from so much of an order of the Civil Court entered April 29, 2013 as denied its motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, pursuant to the parties’ stipulation. In support of plaintiff’s motion to vacate the default order, plaintiff’s attorney alleged that her late submission of an affirmation in opposition to defendant’s motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff’s attorney offered no reason for waiting almost 10 months to move to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]). In view of the foregoing, we reach no other issue.

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

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: February 23, 2015