| Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC |
| 2009 NY Slip Op 06516 [65 AD3d 1102] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Mercury Casualty Company, Appellant, v Surgical Centerat Milburn, LLC, Respondent. |
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In an action for a judgment declaring that the policy of insurance issued by the plaintiff tothe defendant's assignor does not cover a claim for surgical services performed on October 9,2006, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.),entered November 13, 2008, which, inter alia, denied its motion pursuant to CPLR 3215 forleave to enter judgment upon the defendant's default in appearing or answering the complaint.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and thematter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaringthat the policy of insurance issued by the plaintiff to the defendant's assignor does not cover aclaim for surgical services performed on October 9, 2006.
The plaintiff demonstrated its entitlement to a default judgment against the defendant bysubmitting proof of service of the summons and complaint, proof of the facts constituting itsclaim, and proof of the defendant's default in answering or appearing (see CPLR 3215[f]; Matone v Sycamore Realty Corp.,50 AD3d 978 [2008]; AllstateIns. Co. v Austin, 48 AD3d 720 [2008]).
To avoid the entry of a default judgment, the defendant was required to demonstrate areasonable excuse for its default and a meritorious defense to the action (see CPLR 5015[a] [1]; Baldwin v Mateogarcia, 57AD3d 594 [2008]; Grinage v Cityof New York, 45 AD3d 729, 730 [2007]). However, the defendant failed to offer anyexcuse for its default or to present any evidence that it had a meritorious defense. Accordingly,the plaintiff's motion for leave to enter a default judgment should have been granted.
Since this is an action for a declaratory judgment, we remit the matter to the Supreme Court,Nassau County, for the entry of a judgment declaring that the policy of insurance issued by theplaintiff to the defendant's assignor does not cover a claim for surgical services performed onOctober 9, 2006 (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appealdismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Spolzino, J.P.,Santucci, Angiolillo, Leventhal and Lott, JJ., concur.