Opinion
2002-04506
Submitted March 17, 2003.
April 21, 2003.
In an action to recover no-fault medical payments under three insurance contracts, the defendant appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated April 9, 2002, which denied its motion, in effect, to vacate a judgment of the same court, dated December 19, 2002, entered upon its default in opposing that branch of the plaintiffs' prior motion which was for summary judgment on their first cause of action to recover payments for medical services rendered by the plaintiff Westchester Medical Center, and for leave to submit opposition to that branch of the plaintiffs' motion.
Morris, Duffy, Alonso Faley, LLP, New York, N.Y. (Yolanda L. Himmelberger and Andrea M. Alonso of counsel), for appellant.
Joseph Henig, Bellmore, N.Y., for respondent.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
CPLR 5015(a)(1) permits a court to vacate a default on a motion where the moving party shows both a reasonable excuse for its default, and the existence of a meritorious defense (see Harper v. Edwards, 301 A.D.2d 627; Associated Mut. Ins. Co. v. Kipp's Arcadian II, 300 A.D.2d 425; Presbyterian Hosp. in City of New York v. New York Cent. Mut. Ins. Co., 277 A.D.2d 299; Gomez v. Lotero, 273 A.D.2d 198). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court (see Holt Constr. Corp. v. J R Music World, 294 A.D.2d 540; J.P. Equipment Rental Materials v. Fidelity Guar. Ins. Co., 288 A.D.2d 187; Ruppell v. Hair Plus Beauty, 288 A.D.2d 205). Contrary to the defendant's contention, the Supreme Court properly determined that it failed to demonstrate a reasonable excuse for its prior attorney's decision not to oppose that branch of the plaintiffs' motion which was for summary judgment on the first cause of action (see Westchester County Med. Ctr. v. Allstate Ins. Co., 283 A.D.2d 488). Accordingly, the defendant's motion to vacate the judgment entered upon its default was properly denied (see Harper v. Edwards, supra; J.P. Equip. Rental Materials v. Fidelity Guar. Ins. Co., supra; Hospital for Joint Diseases v. Allstate Ins. Co., 283 A.D.2d 609).
Furthermore, although courts have the inherent power to open up a default and modify a judgment where the amount awarded is excessive (see Warren v. Allstate Ins. Co., 300 A.D.2d 577; Neuman v. Greenblatt, 260 A.D.2d 616; Cervino v. Konsker, 91 A.D.2d 249, 253), the defendant failed to submit evidentiary proof to support its claim that the judgment awarded on the first cause of action exceeded the amount contracted for in the subject insurance policy.
RITTER, J.P., SMITH, KRAUSMAN and RIVERA, JJ., concur.