PHYSIODYNAMICS LLC v. ALLSTATE INS CO (2021)

Supreme Court, Appellate Term, New York,

PHYSIODYNAMICS, LLC, as Assignee of Robert Utnick, Appellant, v. ALLSTATE INS. CO., Respondent.

2019-1191 K C

Decided: March 05, 2021

PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.

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.

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.

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