| Hospital for Joint Diseases v Dollar Rent A Car |
| 2006 NY Slip Op 00141 |
| Decided on January 10, 2006 |
| Appellate Division, Second Department |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 10, 2006
ROBERT W. SCHMIDT, J.P.
WILLIAM F. MASTRO
ROBERT A. SPOLZINO
ROBERT J. LUNN, JJ.
2005-01011
v
Dollar Rent A Car, respondent. (Index No. 1515/04)
Joseph Henig, P.C., Bellmore, N.Y., for appellants.
Brand, Glick & Brand, P.C., Garden City, N.Y. (Peter M.
Khrinenko of counsel), for
respondent.
In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated December 14, 2004, as granted that branch of the defendant's motion which was to vacate a prior order of the same court dated July 29, 2004, granting their motion for summary judgment upon the defendant's default in opposing the motion.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Based on, inter alia, (a) the reasonable excuse presented by the defendant for its default in opposing the plaintiffs' motion for summary judgment, including the absence of willfulness and the lack of prejudice to the plaintiffs, and (b) the existence of a possible meritorious defense, the Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was to vacate the order dated July 29, 2004, granting the plaintiffs' unopposed motion for summary judgment (see CPLR 5015[a]; see Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574; Presbyterian Hosp. in City of N.Y. v Empire Ins. Co., 220 AD2d 733, 734).
SCHMIDT, J.P., MASTRO, SPOLZINO and LUNN, JJ., concur.
2005-01011 DECISION & ORDER ON MOTION[*2]
Hospital for Joint Diseases, a/a/o Marla Sandler,
et al., appellants, v Dollar Rent A Car, respondent.
(Index No. 1515/04)
Motion by the appellants on an appeal from an order of the Supreme Court, Nassau County, dated December 14, 2004, to strike portions of the respondent's brief, on the ground, inter alia, that they raise an argument which is not properly before this court. By decision and order on motion of this court dated September 28, 2005, the motion was held in abeyance and was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is,
ORDERED that the motion is granted to the extent that any references to a "merger" in the respondent's brief are stricken, and the motion is otherwise denied.
SCHMIDT, J.P., MASTRO, SPOLZINO and LUNN, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court