| Psychmetrics Med., P.C. v Allstate Ins. Co. |
| 2023 NY Slip Op 50690(U) [79 Misc 3d 129(A)] |
| Decided on June 23, 2023 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. The Law Offices of "Shay" Shailesh Deshpande, LLC (Damin Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Lance P. Evans, J.), entered February 26, 2020. The order granted plaintiff's motion to vacate the dismissal of the action, which dismissal had been based on plaintiff's failure to proceed at trial, and to restore the action to the trial calendar.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion to vacate the dismissal of the action, which dismissal was based on plaintiff's failure to proceed at trial (see Uniform Rules for NY Civ Ct [22 NYCRR] § 208.14 [b] [2]), and to restore the action to the trial calendar.
"Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal 'it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action' " (SZ Med., P.C. v Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Contrary to defendant's argument on appeal, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had demonstrated a reasonable excuse for its default, as plaintiff's witness was out of the country at the time of the trial. [*2]Contrary to defendant's further argument, plaintiff demonstrated that it has a meritorious cause of action (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Defendant's remaining contentions lack merit.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.
ENTER: