| Hospital for Joint Diseases v Lincoln Gen. Ins. Co. |
| 2008 NY Slip Op 07619 [55 AD3d 543] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Hospital for Joint Diseases, as Assignee of Maritza DeThomas,Appellant, v Lincoln General Insurance Company, Respondent. |
—[*1] Nancy S. Linden (Bruno, Gerbino & Soriano, LLP, Melville, N.Y. [Charles W. Benton], ofcounsel), for respondent.
In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appealsfrom an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 25, 2008, whichgranted the defendant's motion to vacate a clerk's judgment of the same court entered October 10,2007, in its favor and against the defendant in the principal sum of $51,585.52, upon the defendant'sfailure to appear or answer the complaint.
Ordered that the order is affirmed, with costs.
Service upon the defendant was effectuated through delivery of the summons and complaint uponthe Assistant Deputy Superintendent and Chief of Insurance pursuant to Insurance Law § 1212(see New York & Presbyt. Hosp. v AllstateIns. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d334 [1998]). Although the defendant's motion was made pursuant to CPLR 5015 (a) (1), under thecircumstances of this case, it may be treated as a motion made under CPLR 317 as well (seeEugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Mann-TellRealty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]).
The defendant met its burden of showing that it did not receive actual notice of the summons [*2]in time to defend with an affidavit of its claims manager detailing itsstandard office practice concerning the handling of summonses and complaints, and asserting that thesummons and complaint in this action was not received until after the entry of judgment (see Marinev Federal Ins. Co., 293 AD2d 721 [2002]). The plaintiff's proof was insufficient to rebut thatshowing (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Moreover, thedefendant established that it may have a meritorious defense to the action (see Taieb v Hilton HotelsCorp., 60 NY2d 725, 727 [1983]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d533, 535 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am.,229 AD2d 479, 480 [1996]; Presbyterian Hosp. in City of N.Y. v Liberty Mut. Ins. Co.,216 AD2d 448 [1995]). Accordingly, the defendant's motion to vacate the clerk's judgmententered upon its failure to appear or answer was properly granted. Fisher, J.P., Lifson, Covello, Balkinand Belen, JJ., concur.