November 26, 2012

Ventrudo v GEICO Ins. Co. (2012 NY Slip Op 52180(U))

Headnote

The main issue in this case was whether the Civil Court erred in denying the plaintiff's motion to enter a default judgment and deeming the defendant's answer "served and accepted and filed." The court found that the plaintiff did not establish their entitlement to the entry of a default judgment based on the evidence provided. However, the court also found that the Civil Court erred in deeming the defendant's answer "served and accepted and filed" as the defendant had not demonstrated a reasonable excuse for its default and a meritorious defense to the action. Therefore, the court modified the order by striking the provision deeming the defendant's answer as accepted and filed, and affirmed the order as modified.

Reported in New York Official Reports at Ventrudo v GEICO Ins. Co. (2012 NY Slip Op 52180(U))

Ventrudo v GEICO Ins. Co. (2012 NY Slip Op 52180(U)) [*1]

Ventrudo v GEICO Ins. Co.

2012 NY Slip Op 52180(U) [37 Misc 3d 137(A)]

Decided on November 26, 2012

Appellate Term, Second Department

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

As corrected in part through December 3, 2012; it will not be published in the printed Official Reports.

Decided on November 26, 2012

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

PRESENT: : RIOS, J.P., ALIOTTA and SOLOMON, JJ
2011-222 Q C.

John M. Ventrudo, M.D. as Assignee of JOAN WEBSON, Appellant,
against
GEICO Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 15, 2010. The order denied plaintiff’s motion to enter a default judgment and deemed defendant’s answer “served and accepted and filed.”

ORDERED that the order is modified by striking the provision thereof that deemed defendant’s answer “served and accepted and filed”; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied his motion for leave to enter a default judgment and deemed defendant’s answer “served and accepted and filed.”

In support of his motion, plaintiff proffered an attorney-verified complaint and an affirmation by his attorney, neither of which is sufficient to satisfy the requirements of CPLR 3215 (f). Consequently, plaintiff did not establish his entitlement to the entry of a default judgment (see Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; All Mental Care Medicine, P.C. v Allstate Ins. Co., 15 Misc 3d 129[A], 2007 NY Slip Op 50612[U] [App [*2]Term, 2d & 11th Jud Dists 2007]). However, the Civil Court erred in deeming defendant’s answer “served and accepted and filed,” as defendant had failed to demonstrate its entitlement to such relief by showing that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Thus, that portion of the order must be stricken.

Accordingly, the order is modified by striking so much of the order as deemed defendant’s answer “served and accepted and filed,” and, as so modified, is affirmed.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2012