April 21, 2017

Healthworx Med., P.C. v Auto One Ins. Co. (2017 NY Slip Op 50559(U))

Headnote

The main issue in the case was whether the defendant, Auto One Ins. Co., had a reasonable excuse for its default in a prior order and a meritorious defense to the action in a case where a provider was seeking to recover assigned first-party no-fault benefits. The court considered the fact that the initial order granting the plaintiff's motion for summary judgment was entered without opposition from the defendant and that both sides had agreed to the terms. The defendant subsequently moved to vacate the judgment and the order, arguing for a reasonable excuse for its default and a meritorious defense to the action. However, the court found that the defendant had not provided a reasonable excuse for its default and upheld the initial order on different grounds. The holding of the case was that the order denying the defendant's motion to vacate the judgment and order was affirmed, without costs, as the defendant failed to establish grounds sufficient to set aside the stipulation that was entered on consent. The court ruled in favor of the plaintiff, Healthworx Medical, P.C., as the defendant, Auto One Ins. Co., failed to make a sufficient showing to vacate the prior order.

Reported in New York Official Reports at Healthworx Med., P.C. v Auto One Ins. Co. (2017 NY Slip Op 50559(U))

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

Healthworx Medical, P.C., as Assignee of Stefani Perez, Respondent,
against
Auto One Ins. Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Emilia I. Rutigliano, 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 May 14, 2015. The order denied defendant’s motion to vacate a prior order of the same court entered January 16, 2014 granting, on consent, plaintiff’s motion for summary judgment, and the judgment entered pursuant thereto on February 20, 2014, and, upon such vacatur, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, after one adjournment, the Civil Court, by order entered January 16, 2014, granted the motion without opposition from defendant. The order states, “[b]oth sides agreed to the above and will not appeal this order.” A judgment was entered pursuant to that order on February 20, 2014. Subsequently, defendant moved to vacate the judgment and order, arguing that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant’s motion, finding that defendant had not provided a reasonable excuse for its default.

Since the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Hallock v State of New York, 64 NY2d 224 [1984]; CCU, LLC v Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing. Accordingly, the order denying defendant’s motion is affirmed, albeit on a different ground.

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

Paul Kenny
Chief Clerk
Decision Date: April 21, 2017