NEW DECISIONS

NYU-The Hospital For Joint Diseases v Progressive Casualty Insurnce Co., 2008 NY Slip Op 31643(U)(Sup Ct, Nassau County)

The defendant moves for an order pursuant to CPLR 317 and 50 15 (a) (1) vacating the default judgment entered here against the defendant, and allowing the defendant's answer and discovery demands to be deemed timely served.

The defense attorney states, in a supporting affirmation dated February 6 2008, as shown in the affidavit dated February 6, 2008 of Angel Boyer, the defendant's no-fault litigation representative, the circumstances surrounding the earliest notice received by the defendant of the existence of the lawsuit was on November 30, 2007, when the defendant received a copy of a service of process transmittal letter from its agent, CT Corporation dated November 28 2007, enclosing a copy of the Insurance Department transmittal letter of October 23, 2007. The defense attorney points out, as shown -in the Boyer affidavit, no copy of the summons and complaint was sent by CT Corporation at that time nor received from anyone by the defendant until it requested it from the plaintiff s lawyer on November, 2007. The defense attorney asserts Boyer was informed, immediately telephoned the office of the plaintiff’s lawyer, and asked for a copy of the summons and complaint while learning a default judgment had been entered against the defendant.

The defense attorney contends the default was unintentional and excusable, and the instant motion is timely. The defense attorney points out the defendant's agent was served with a copy of the judgment with notice on December 12, 2007. The defense attorney remarks the defendant first received actual notice of the entry of the judgment on November 30, 2007, after the time to answer had expired. The defense attorney asserts the defendant failed to receive notice of the action in time to defend it, and the defendant was not served by personal delivery to the corporation, to wit hand delivery nor to a CPLR 318 agent. The defense attorney opines the defendant is entitled to vacatur of the default without the need to establish a reasonable excuse for the delay in answering or appearing. The defense attorney states, even if a reasonable excuse for the default were required, the defendant has established it.

The defense counsel opines the Nassau County Clerk entered judgment here pursuant to CPLR 3215 , however to constitute a sum certain, that statute contemplates a situation, once liabilty has been established, there can be no dispute as to the amount due as in actions on money judgments and negotiable instruments. The defense counsel states there was reliance on extrinsic proof for this default judgment, so the judgment is a nullity.

The plaintiffs attorney states, in an opposing affirmation dated March 18, 2008, the Superintendent of Insurance acknowledged service of the summons and complaint as effective as of October 22, 2007, and a copy of those papers was mailed to the defendant on October 23 2007. The plaintiffs attorney contends the defendant's mere denial of receipt of process is insufficient to rebut the presumption of receipt created by the Superintendent's acknowledgment. The plaintiffs attorney asserts the defendant' s application for vacatur defective since neither the defendant' s representative nor the defense attorney has personal knowledge of the facts. The plaintiff s attorney points out the plaintiff entered a judgment against the defendant on December 4, 2007, and a copy of the judgment was served upon the defendant by regular and certified mail on December 12, 2007. The plaintiffs attorney notes the defendant did not respond to the default judgment, and on January 21, 2008, an information subpoena, which required a response within seven days, was served by regular and certified mail upon the defendant, who did not respond to the information subpoena. The plaintiffs attorney avers the defendant' s counsel exhibited a pattern of neglect even after the default, and the default was inexcusable. The plaintiff s attorney contends the defendant has failed to provide a reasonable excuse for the default.

The plaintiff s attorney also contends the existence of a meritorious defense irrelevant, and points to the first cause of action. The plaintiffs attorney points out the defendant's representative claims exhaustion of policy limits, however Angel Boyer affidavit is based upon a review of the file, and that person s affidavit is hearsay. The plaintiff s attorney opines the Boyer affidavit cannot create a foundation for the alleged breakdown of payments; the breakdown is not sworn to and is not in admissible form. The plaintiff s attorney notes the breakdown of payments has handwritten notations, to wit alterations which further nullify the form. The plaintiffs attorney submits the form does not comply with 11 NYCRR 65-3.15 which requires listing the dates in the order in which each service was rendered.

In order to restore a case to the trial calendar after default, the defendant must establish: (1) a meritorious defense of the case, (2) a reasonable excuse for the delay, (3) the absence of -a intent to abandon the matter, and (4) the lack of prejudice to the nonmoving party if the case is restored to the calendar (see, Rudy v Chasky, 260 AD2d 625; Iazzetta v Vicenzi, 243 AD2d 540). The defendant here has not made that showing, in the supporting sworn statements, and the other supporting papers to this motion.