| Physiodynamics, LLC v Allstate Ins. Co. |
| 2021 NY Slip Op 50178(U) [70 Misc 3d 143(A)] |
| Decided on March 5, 2021 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Gary Tsirelman, P.C. (Selina Chin and David Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered July 3, 2019. The order granted defendant's motion to vacate a judgment of that court entered October 4, 2017 upon defendant's failure to appear or answer the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion to vacate the default judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered July 3, 2019, which granted defendant's motion to vacate a judgment entered October 4, 2017 upon defendant's failure to appear or answer the complaint.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]). As plaintiff argues, defendant did not sufficiently allege its purported reasonable excuse of law office failure (see Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant's motion should have been denied.
Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.