May 19, 2005

SZ Med. P.C. v Allstate Ins. Co. (2005 NYSlipOp 50745(U))

Headnote

The relevant facts of the case were that the plaintiffs, SZ Medical P.C., Life Chiropractic P.C., and Somun Acupuncture P.C., were seeking to recover first-party no-fault benefits for medical services rendered to their assignor, Rochelle B. Commodore. The defendant, Allstate Insurance Company, had a default judgment entered against them. The main issue decided by the court was whether the lower court had properly granted the defendant's motion to vacate the default judgment. The holding of the court was that the decision to vacate a default judgment rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion. The court affirmed the lower court's decision to grant the defendant's motion to vacate the default judgment.

Reported in New York Official Reports at SZ Med. P.C. v Allstate Ins. Co. (2005 NYSlipOp 50745(U))

SZ Med. P.C. v Allstate Ins. Co. (2005 NYSlipOp 50745(U)) [*1]

SZ Med. P.C. v Allstate Ins. Co.

2005 NYSlipOp 50745(U)

Decided on May 19, 2005

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PATTERSON, J.P, GOLIA and RIOS, JJ.
2004-743 Q C

SZ MEDICAL P.C., LIFE CHIROPRACTIC P.C. SOMUN ACUPUNCTURE P.C. a/a/o ROCHELLE B. COMMODORE, Appellants,
against
ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered February 27, 2004, which granted defendant’s motion to vacate a default judgment.

Order unanimously affirmed without costs. [*2]
In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, a default judgment was entered against defendant. A determination vacating a default “rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005