Opinion
9370 Index 152680/16
05-21-2019
HEREFORD INSURANCE COMPANY, Plaintiff–Appellant, v. FOREST HILLS MEDICAL, P.C., et al., Defendants, Art of Healing Medicine, P.C., et al., Defendants–Respondents.
Goldberg, Miller & Rubin, P.C., New York (Harlan R. Schreiber of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.
Goldberg, Miller & Rubin, P.C., New York (Harlan R. Schreiber of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.
Sweeny, J.P., Renwick, Tom, Kapnick, Oing, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered June 13, 2018, which granted the motion of defendants VP Chiropractic Adjustment, P.C., Acuneed, LLC, and Art of Healing Medicine, P.C. (collectively, movant defendants) to vacate the default judgment entered against them August 9, 2016, unanimously reversed, on the law and the facts, without costs, and the motion to vacate denied. Although movant defendants' motion to vacate was timely ( CPLR 2103[b][2] ), "(a) defendant seeking to vacate a default under [ CPLR 5015(a)(1) ] must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action" ( Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). Here, movant defendants' excuse of law office failure for failing to timely answer because the proposed answer was inadvertently filed with another action was unsubstantiated and insufficient (see Fernandez v. Santos, 161 A.D.3d 473, 76 N.Y.S.3d 147 [1st Dept. 2018] ; Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 945 N.Y.S.2d 298 [1st Dept. 2012] ).
Moreover, movant defendants failed to demonstrate a meritorious defense. The failure by the occupants of the vehicle to subscribe and return the transcripts of their examinations under oath violated a condition precedent to coverage and warranted denial of the claims (see Hertz Vehs., LLC v. Gejo, LLC, 161 A.D.3d 549, 77 N.Y.S.3d 375 [1st Dept. 2018] ).