State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med.,P.C.

2017 NY Slip Op 05992 [153 AD3d 576]

August 2, 2017

Appellate Division, Second Department

As corrected through Wednesday, September 27, 2017

[*1]

State Farm Mutual Automobile Insurance Company,Respondent, v Austin Diagnostic Medical, P.C., Appellant.

Cardillo Law PC, Brooklyn, NY (Harry A. Cardillo of counsel), for appellant.

Freiberg, Peck & Kang LLP, Armonk, NY (Yilo J. Kang of counsel), forrespondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-faultinsurance benefits, the defendant appeals from an order of the Supreme Court, Queens County(Dufficy, J.), entered February 29, 2016, which denied its motion to extend its time to answer, orin the alternative, to compel the plaintiff to accept the untimely answer.

Ordered that the order is affirmed, with costs.

The plaintiff insurance company commenced this action against the defendant, seeking ajudgment declaring that it was not obligated to pay certain no-fault insurance benefits because thedefendant failed to appear for examinations under oath. The defendant filed an answerapproximately 31/2 months after the statutory time to file an answer had expired.The plaintiff rejected the answer as untimely, and the defendant moved to extend its time toanswer, or in the alternative, to compel the plaintiff to accept the untimely answer. The SupremeCourt denied the motion, and the defendant appeals.

To compel the plaintiff to accept an untimely answer as timely or to extend the time for adefendant to answer, a defendant must provide a reasonable excuse for the delay and demonstratea potentially meritorious defense to the action (see Ryan v Breezy Point Coop., Inc., 76 AD3d 523, 524 [2010]; Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353 [2005]). Here, the defendant submitted an answer which wasverified only by its attorney and an affirmation from its attorney who did not have personalknowledge of the facts. These documents were insufficient to demonstrate that the defendant hada potentially meritorious defense to the action (see Salch v Paratore, 60 NY2d 851[1983]; Ryan v Breezy Point Coop., Inc., 76 AD3d at 524; Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353 [2005]).

The parties' remaining contentions either are without merit or have been rendered academicin light of our determination.

Accordingly, the Supreme Court providently exercised its discretion in denying thedefendant's motion. Dillon, J.P., Austin, Hinds-Radix and LaSalle, JJ., concur.