A.B. Med. Serv. PLLCv.Americar Truck Rental Inc.

Appellate Term of the Supreme Court of New York, Second DepartmentOct 23, 2003
2003 N.Y. Slip Op. 51394 (N.Y. Misc. 2003)

2002-1691 K C.

Decided October 23, 2003.

Appeal by plaintiffs from an order of the Civil Court, Kings County (P. Sweeney, J.), entered October 8, 2002, granting defendant's motion to vacate a default judgment and, upon vacating the default, dismissing the complaint.

Order unanimously affirmed without costs.


On the circumstances herein, the court's determination that defendant demonstrated a reasonable excuse for its default and a meritorious defense to the action (CPLR 5015 [a] [1]; Belesi v. Gifford, 269 AD2d 552) was not an improvident exercise of discretion and should not be disturbed ( Levy Williams Constr. Corp. v. United States Fire Ins. Co., 280 AD2d 650, 651). Defendant, a vehicle rental company which is not self-insured ( cf. Vehicle and Traffic Law § 316), was not a proper party defendant in this action to recover no-fault benefits, as plaintiffs knew or should have known from their settlement with defendant's insurer of identical claims on behalf of other parties injured in the same automobile accident as their assignors. Defendant's insistence that it did not respond to the suit because it never received the summons and complaint forwarded by the insured, amounts to a claim of law office failure which the court, in its discretion, could accept as a reasonable excuse for defendant's nonappearance ( e.g. Presbyterian Hosp. in City of N.Y. v. New York Cent. Mut. Ins. Co., 277 AD2d 299, 300; Parker v. City of New York, 272 AD2d 310; Belesi v. Gif ford, 269 AD2d 552) given that defendant moved promptly to vacate the default judgment ( cf. Eretz Funding v. Shalosh Assocs., 266 AD2d 184, 185). In light of the foregoing, the court properly dismissed the action.