Bronx Radiology, P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51368(U))

Nassau District Court

1422/04

Scott Fairgrieve, J.

The defendant’s motion, by way of order to show cause, for an order pursuant to CPLR 5015(a)(1) vacating the court’s decision and order dated May 9, 2005 granting plaintiff’s unopposed motion for summary judgment, which was thereafter served with Notice of Entry on May 18, 2005, and the default judgment entered thereupon on August 30, 2005, is denied.

Plaintiff brought this action to recover $912.00 for medical services rendered to the defendant’s insured pursuant to New York State’s No-fault law. Defendant claimed that plaintiff is not entitled to payment because its assignor failed to appear for two IMEs. Plaintiff alleges that this fact is irrelevant because the services at issue were rendered before the date of the first scheduled IME. For the reasons set forth below, the Court need not reach this issue.

With respect to CPLR 5015(1), it is well settled that, as a matter of general policy, disposition of cases should be had by a determination on the merits of the action and not by way of a default. (Benadon v. Antonio, 10 AD2d 40) After entry of a default judgment, however, to obtain vacatur of a judgment pursuant to this provision, defendant must demonstrate that the default is excusable and, in addition, allege facts showing a meritorious defense to the underlying action. (Schiller v. Sun Rock Bldg. Corp., 260 AD2d 566; Quis v. Bolden, 298 AD2d 375; Wall v. Bennett, 33 AD2d 827) It is also well settled that conclusory allegations and denials are insufficient to demonstrate a meritorious defense. (St. Luke’s Roosevelt Hosp. v. Blue Ridge Ins. Co., 21 AD3d 946; Rapaport v. Rapaport, 150 AD2d 353; Maines Paper and Food Service Inc. v. Farmington Foods, 233 AD2d 595; Stow Mfg. Co. v. F & K Supply Inc., 232 AD2d 958) [*2]

In the instant matter, plaintiff served its motion for summary judgment upon counsel for the defendant on or about January 6, 2005. On the return date, February 18, 2005, the matter was adjourned by defendant to March 15, 2005 for defendant’s opposition. On that date, the motion was again adjourned to April 15, 2005 for defendant’s opposition. On April 15, 2005, the defendant’s application for yet another adjournment to submit opposition papers was denied and the motion was submitted without opposition. On May 9, 2005, the Court issued its decision and order granting plaintiff summary judgment for the relief demanded in the complaint. On April 10, 2006, nearly one year later, defendant brought the instant motion by way of order to show cause, seeking to vacate the default judgment and for summary judgment dismissing the complaint. The motion to vacate the judgment resulting from the defendant’s default in opposing the motion for summary judgment is untimely.

As held by the Court in Achampong v. Weigelt, 240 AD2d 247:

In this case, the prior default motion was contested by defendants, who, thereafter, neither appealed nor moved for reargument/renewal within the statutory 30 day period pursuant to CPLR 5513. We have previously noted: Where, as here, a party appears and contests an application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an order or judgment entered upon default, is inapplicable, and the judgment predicated upon the party’s default is therefore appealable (Marrocco v. Marrocco, 90 AD2d 989, 456 NYS2d 906). The IAS Court therefore properly determined that the appellant’s prior failure to take a timely appeal from entry of the contested judgment was fatal to the subsequent vacatur motion (Pergamon Press v. Tietze, 81 AD2d 831, 438 NYS2d 831). (Spatz v. Bajramoski, 214 AD2d 436, 624 NYS2d 606).”

In other words, defendant’s remedy in response to the Court’s May 9, 2005 decision and order was to appeal or to renew or reargue within the statutory 30 day period. Where defendant has appeared, it may not sit back for nearly a year and then move to vacate the decision and order pursuant to CPLR §5015(a)(1) as if it had never appeared in the action. This issue has also been addressed by Professor David Siegel. In Siegel, Supplementary Practice Commentaries, McKinney’s Cons.Laws of NY, Book 7B, CPLR 5015, C5015:3 1998 Cumulative Supplementary Pamphlet, at page 268 he writes in relevant part:

Suppose, however, that D contested the default judgment, as where P gave notice of the application for it or D otherwise got wind of it and showed up to resist the application, or where the default was for something the defendant neglected to do in the case after duly appearing, e.g., failing to serve an answer to an amended complaint, failing to particularize defenses, failing to make required disclosure, etc. Suppose further that D’s resistance to P’s default application does not succeed and that P gets the default judgment. Does D in that situation get the year in which to move to vacate the default judgment? Achampong v. Weigelt, 240 AD2d 247, 658 NYS2d 606 (1st Dep’t, June 12, 1997), holds that D does not. In this situation D must appeal the contested default judgment or move to reargue or [*3]renew within the usual 30 days after being served with notice of entry of the judgment.

Accordingly, the motion to vacate the Court’s decision and order of May 9, 2005, and the judgment entered thereupon, is denied.

So Ordered:

DISTRICT COURT JUDGE

Dated:July 12, 2006

CC:Carman, Callahan & Ingham, LLP

Israel, Israel & Purdy, LLP