| Montefiore Med. Ctr. v Auto One Ins. Co. |
| 2008 NY Slip Op 10596 [57 AD3d 958] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Montefiore Medical Center et al., Respondents, v AutoOne Insurance Company, Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondents.
In an action to recover no-fault medical benefits under two insurance contracts, the defendantappeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated February 28,2008, which denied its motion pursuant to CPLR 5015 (a) (1) to vacate a judgment of the samecourt dated September 18, 2007, entered upon its default in appearing or answering thecomplaint, which was in favor of the plaintiffs and against it in the principal sum of $43,030.53.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the defendant's motionpursuant to CPLR 5015 (a) (1) to vacate a judgment entered upon its default in appearing oranswering the complaint since it failed to demonstrate a reasonable excuse for the default (seeEugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Giovanelli vRivera, 23 AD3d 616 [2005]). The plaintiffs established that they effectuated service uponthe defendant through delivery of the summons and complaint upon the Assistant DeputySuperintendent and Chief of Insurance (see Insurance Law § 1212; Hospital forJoint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; New York & Presbyt.Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co.,254 AD2d 334 [1998]; see also CPLR 311 [a] [1]). The defendant did not contend thatthe address on file with the Superintendent of Insurance was incorrect, and the mere denial ofreceipt of the summons and complaint was insufficient to rebut the presumption of proper servicecreated by the affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc.,29 AD3d 511 [2006]; [*2]Carrenard v Mass, 11 AD3d501 [2004]; Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]). Even if thedefendant's motion were treated as one made pursuant to CPLR 317 (see Eugene Di Lorenzo,Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]; Mann-Tell Realty Corp. vCappadora Realty Corp., 184 AD2d 497, 498 [1992]), the defendant failed to meet its burdenof showing that it did not receive actual notice of the summons in time to defend the action(see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005];cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]). Skelos,J.P., Dillon, Carni and Leventhal, JJ., concur.