CLOVE MEDICAL SUPPLY INC v. COUNTRY WIDE INS CO (2023)

Supreme Court, Appellate Term, New York,

CLOVE MEDICAL SUPPLY, INC., as Assignee of Tejeda Victor, Appellant, v. COUNTRY-WIDE INS. CO., Respondent.

2022-150 K C

Decided: February 24, 2023

PRESENT: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, MARINA CORA MUNDY, JJ.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Thomas Torto, for respondent.

ORDERED that the order is reversed, with $30 costs, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant's motion to vacate the default judgment.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement which provided that defendant would pay plaintiff the total sum of $2,523.02. Plaintiff accepted from defendant three checks dated 45 days after the stipulation of settlement. Thereafter, plaintiff applied for a default judgment, alleging that defendant had failed to timely make the payment. Plaintiff provided a signed copy of the purported stipulation of settlement which set forth that defendant was to make the payment within 21 days. A judgment was entered against defendant. Defendant moved to vacate the judgment, asserting that its payment was timely. Defendant provided a signed copy of the purported stipulation of settlement which contained a handwritten notation setting forth that defendant was to make the payment within 45 days. After oral argument, but without holding a hearing, the Civil Court granted defendant's motion.

In light of the apparent factual dispute regarding the terms of the stipulation of settlement and defendant's compliance with them, it was error for the Civil Court to grant defendant's motion without holding a hearing to determine the disputed issues of fact (see Midland Funding, LLC v Dort, 39 Misc 3d 151[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also U.S. Equities Corp. v Ridwan, 71 Misc 3d 138[A], 2021 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant's motion to vacate the default judgment.

TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.

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