| New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins.Co. |
| 2014 NY Slip Op 06188 [120 AD3d 1322] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| New York Hospital Medical Center of Queens, asAssignee of Jose Tacuri, Appellant, v Nationwide Mutual Insurance Company,Respondent. |
Joseph Henig, P.C., Bellmore, N.Y., for appellant.
Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Mickei Milton ofcounsel), for respondent.
In an action to recover no-fault medical benefits under an insurance contract, theplaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), datedJanuary 13, 2014, which granted the defendant's motion to vacate a clerk's judgment ofthe same court entered October 25, 2013, which, upon the defendant's default inappearing or answering the complaint, was in favor of the plaintiff and against thedefendant in the principal sum of $25,621.20, and pursuant to CPLR 3012 (d) to extendits time to appear and to compel the plaintiff to accept its late notice of appearance.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default in answering or appearing must demonstratea reasonable excuse for the default and a potentially meritorious defense to the action(see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,67 NY2d 138, 141 [1986]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695,696 [2011]). The determination of what constitutes a reasonable excuse lies within thetrial court's discretion (seeAdolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 AD3d791, 792 [2011]; RemoteMeter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]).
Here, the defendant established a reasonable excuse through an employee's affidavit,which attested to a clerical oversight regarding the delay in forwarding the summonswith notice to its attorney (see Westchester Med. Ctr. v Allstate Ins. Co., 80AD3d at 696; Perez v TravcoIns. Co., 44 AD3d 738, 739 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d743 [2006]). Furthermore, the defendant demonstrated a potentially meritoriousdefense to the action. Accordingly, in light of the foregoing, as well as the public policyfavoring the resolution of cases on the merits, the defendant's lack of willfulness, and theabsence of any prejudice to the plaintiff, the Supreme Court providently exercised itsdiscretion in granting the defendant's motion to vacate the default judgment, to extend itstime to appear, and to compel the plaintiff to accept its late notice of appearance (seeCPLR 3012 [d]; NYU-Hospital for Joint Diseases v Praetorian Ins. Co., 98AD3d 1101, 1102 [2012]; Westchester Med. Ctr. v Allstate Ins. Co., 80AD3d at 697). Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.