Lancer Ins. Co. v. Fishkin

• Decision Date: 07 December 2022
• Docket Number: 2020–09268,Index No. 608281/19
• Citation: 211 A.D.3d 719,180 N.Y.S.3d 199
• Parties: LANCER INSURANCE COMPANY, appellant-respondent, v. Zair FISHKIN, etc., respondent-appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 719

180 N.Y.S.3d 199

LANCER INSURANCE COMPANY, appellant-respondent,

v.Zair FISHKIN, etc., respondent-appellant.

2020–09268

Index No. 608281/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 20, 2022

December 7, 2022

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Brian Kaufman of counsel), for appellant-respondent.

The Wright Firm, LLC, Rochester, NY (Ronald F. Wright of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated October 8, 2020. The order, insofar as appealed from, denied the plaintiff's motion for leave to enter a default judgment against the defendant. The order, insofar as cross-appealed from, denied the defendant's motion to change venue of the action to Monroe County based upon the convenience of material witnesses.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, and the plaintiff's motion for leave to enter a default judgment against the defendant is granted; and it is further,

ORDERED that the cross appeal is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff, a no-fault insurance carrier, denied claims for reimbursement for medical treatment submitted by the defendant, a medical provider. Subsequently, the defendant commenced arbitration and was awarded the sum of $10,029.73. The plaintiff sought review of the award and the award was confirmed by a master arbitrator. The plaintiff thereafter commenced this action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, in Nassau County, premised on the location of its headquarters and principal place of business. In the complaint, the plaintiff asserted that the defendant was not entitled to reimbursement as the services provided by the defendant were not medically necessary and were not related to the subject motor vehicle accident.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant's failure to timely answer the complaint or appear in this action. The defendant failed to oppose the motion. Almost two months later, the defendant moved to change venue of the action to Monroe County pursuant to CPLR 510(3), based upon the convenience of material witnesses. The plaintiff opposed the motion, contending that it was untimely and unsupported on the merits. In an order dated October 8, 2020, the Supreme Court denied both motions. As to the plaintiff's motion, the court, in its discretion, found that the issuance of an award in the defendant's favor, in light of the overall policy in favor of the resolution of litigation on the merits, warranted denial of the plaintiff's motion. As to the defendant's motion, the court determined that the defendant failed to satisfy any of the criteria set forth in CPLR 510(3). The plaintiff appeals and the defendant cross-appeals.

Pursuant to CPLR 3215(f), "[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" ( Countrywide Home Loans Servicing, L.P. v. Vorobyov, 188 A.D.3d 803, 806, 136 N.Y.S.3d 81 ; see Global Liberty Ins. Co. v. Haar Orthopaedics & Sports Med., P.C., 170 A.D.3d 1125, 1126, 97 N.Y.S.3d 249 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 59, 970 N.Y.S.2d 260 ).

To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ; Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260 ; Neuman v. Zurich N. Am., 36 A.D.3d 601, 602, 828 N.Y.S.2d 169 ).

"In order to successfully oppose a motion for leave to enter a default judgment, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action" ( Maldonado v. Mosquera, 186 A.D.3d 1352, 1353, 129 N.Y.S.3d 15 ). Where the defendant fails to demonstrate a reasonable excuse...