| Westchester Med. Ctr. v Allstate Ins. Co. |
| 2011 NY Slip Op 00377 [80 AD3d 695] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Westchester Medical Center, Respondent, v Allstate InsuranceCompany, Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault medical payments under certain contracts of insurance, thedefendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered December21, 2009, which denied its motion to vacate a judgment of the same court entered March 12, 2009,which, upon its failure to appear or answer the complaint, was in favor of the plaintiff and against it inthe principal sum of $29,103.60, and to compel the plaintiff to accept a late answer pursuant to CPLR3012 (d), and held in abeyance and referred for a hearing the plaintiff's motion to hold it in contempt forfailure to comply with an information subpoena dated March 30, 2009, and its cross motion to quashthe information subpoena.
Ordered that the appeal from so much of the order entered December 21, 2009, as held inabeyance and referred for a hearing the plaintiff's motion to hold the defendant in contempt for failure tocomply with an information subpoena dated March 30, 2009, and the defendant's cross motion toquash the information subpoena is dismissed; and it is further,
Ordered that the order entered December 21, 2009, is reversed insofar as reviewed, on the factsand in the exercise of discretion, the defendant's motion to vacate the judgment entered March 12,2009, and to compel the plaintiff to accept a late answer pursuant to CPLR 3012 (d) is granted, thejudgment entered March 12, 2009, is vacated, and the answer annexed to the motion papers is deemedtimely served upon the plaintiff; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The order entered December 21, 2009, did not decide the plaintiff's motion to hold the defendantin contempt for failure to comply with an information subpoena dated March 30, 2009, or thedefendant's cross motion to quash the information subpoena, but instead, held that motion and crossmotion in abeyance and referred them for a hearing. Accordingly, no appeal lies as of right from thatportion of the order (see CPLR 5701 [a] [2] [v]; Evan S. v Joseph R., 70 AD3d 668 [2010]; Quigley v Coco's Water CafÉ, Inc.,43 AD3d 1132 [2007]), and we decline to grant leave.
A defendant seeking to vacate a judgment entered on default must demonstrate a [*2]reasonable excuse for its delay in appearing or answering the complaintand a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Taddeo-Amendola v 970 Assets, LLC, 72AD3d 677 [2010]). The defendant established through an employee's affidavit, which attested to aclerical oversight regarding the delay in forwarding the summons and complaint to its attorney, areasonable excuse for the short period of time following service of the complaint in which it failed eitherto appear or answer the complaint (see Perezv Travco Ins. Co., 44 AD3d 738 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743[2006]). Furthermore, the defendant demonstrated that it has a potentially meritorious defense to theaction. Accordingly, the Supreme Court improvidently exercised its discretion in denying thedefendant's motion to vacate its default and to compel acceptance of its answer in light of the strongpublic policy that actions be resolved on their merits, the brief delay involved, the defendant's lack ofwillfulness, and the absence of prejudice to the plaintiff (see Perez v Travco Ins. Co., 44 AD3d 738 [2007]; New York & Presbyt. Hosp. v American HomeAssur. Co., 28 AD3d 442 [2006]). Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.
Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County,entered December 21, 2009, to dismiss so much of the appeal as held in abeyance and referred for ahearing the respondent's motion to hold the appellant in contempt for failure to comply with aninformation subpoena dated March 30, 2009, and the appellant's cross motion to quash the informationsubpoena, on the ground that said portion of the order is not appealable as of right. By decision andorder on motion of this Court dated September 1, 2010, inter alia, the motion was referred to the panelof Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and, uponthe argument of the appeal, it is
Ordered that the motion is denied as academic in light of our determination on the appeal. Dillon,J.P., Balkin, Leventhal and Chambers, JJ., concur.