SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HONORABLE KENNETH A. DAVIS
Justice
TRIAL/IAS, PART 11
NASSAU COUNTY
WESTCHESTER MEDICAL CENTER a/a/o JAMES
RUSSELL, SHEENA AUSTIN, TED NARDOZZI,
CHARLES SACCO, RAJEEV VYAS; COMMUNITY
HOSPITAL OF BROOKLYN a/a/o BARBARA
MULLER,
Plaintiff(s),
INDEX No.
-against-
8700/01
MOTION SUBMISSION
DATE: l/4/02
GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Defendant(s).
The following papers read on this --motion:
Notice of Motion/ Order to Show Cause
Answering Affidavits
Replying Affidavits
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
SEQ.
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X
X
Upon the foregoing papers, defendant's request for an order
vacating the default judgment pursuant to CPLR §5015(a), entered
in favor of the plaintiff and against the defendant, and allowing
defendant to submit its opposition papers is granted.
The instant action arises from no-fault insurance claims by
The
two hospitals for the treatment of six unrelated patients.
filed
a
Motion
,for
Summary
action was commenced when plaintiffs
On or about
Judgment pursuant to CPLR §3212 on August 22, 2001.
October 3, 2001, the parties entered into a written stipulation
to adjourn the motion and extend the return date from October 10,
Defendant failed to file the
2001 to October
31, 2001.
citing
a clerical calendar service
stipulation with the Cour,t,
Approximately one week after the original return date
error.
expired, defendant's attorney realized the clerical error and
attempted to remedy the situation by requesting that plaintiff
enter into a stipulation vacating the default judgment entered
Consequently, defendant brought
Plaintiff refused.
against it.
the instant motion to vacate the def'ault judgment and allow it to
interpose a defense.
Westchester Medical a/a/o Russell v. Geico
Index No. 8700/01
The preference within the court system is to decide cases
on their merits. See, Lichtman v. Sears, Roebuck & Co., 236
A.D.2d 373, 653 N.Y.S.2d 25 (2d Dep't 1997); Davies v. Contel of
New York, 155 A.D.2d 809, 548 N.Y.S.2d 85 (3d Dep't 1989). In
order to vacate a default the defaulting party must demonstrate
that they had a reasonable excuse for the delay, that they have
provided a meritorious defense, that the default was not willful
and that the plaintiff will not be prejudiced. Lichtman v. Sears,
A default by a defendant should be vacated
Roebuck & Co., sup
ra.
where there is "minimal prejudice caused by the defendant's short
delay in answering, as well as the public policy in favor of
resolving cases on the merits." Classie v. Stratton Oakmont,
(2d Dep't 1997).
653 N.Y.S.2d 377
236 A.D.2d 505,
Inc.,
Defendant has demonstrated that the delay was minimal, that the
that the plaintiff will not be
default was not willful,
prejudiced, and that they have several meritorious defenses to
Furthermore, the court finds that defendant has a
the action.
reasonable excuse for their failure in filing the stipulation
with the Court, as it was an error on the part of their calendar
Accordingly, it is hereby ordered that the default
service.
Plaintiff shall submit new papers seeking
judgment is vacate.
the same relief no later than 20 days from the date of this
order, and that defendant may submit its papers in opposition
thereto according to statute.
This constitutes the decision
Dated:
and order of the Court.
FE3j_ j_ FS
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