DTG Operations, Inc. v. Excel Imaging, P.C. , 990 N.Y.S.2d 8 ( 2014 )

DTG Operations, Inc. v Excel Imaging, P.C. (2014 NY Slip Op 05030)

DTG Operations, Inc. v Excel Imaging, P.C.

2014 NY Slip Op 05030

Decided on July 3, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2014
Gonzalez, P.J., Acosta, DeGrasse, Freedman, Richter, JJ.

12961N 110729/11

[*1] DTG Operations, Inc., doing business as Dollar Rent-A-Car, Plaintiff-Appellant,

v

Excel Imaging, P.C., et al., Defendants, Haar Orthopaedics and Sports Medicine, P.C., et al., Defendants-Respondents.

Rubin, Fiorella & Friedman LLP, New York (Aaron F. Fishbein of counsel), for appellant.

Amos Weinberg, Great Neck, for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered May 22, 2013, which granted defendants-respondents' motion to vacate a default judgment against them, unanimously reversed, on the law, without costs, and the motion denied.

In this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defense (see New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012]). In support of their motion to vacate the default, defendants-respondents submitted, among other things, the affidavit of their office and billing manager who stated that she "d[id] not recall" any court papers on this matter, but did not deny receiving any. She further stated that the office location had moved, but did not specify whether that move occurred before or after the date reflected in the affidavits of service. She further asserted that the "summons" did not provide any information from which to link this action to the claimant treated by defendants-respondents. However, the concise, 10-page complaint named defendants-respondents and claimants as defendants in the caption and plainly states that claimants sought medical treatment from defendants-respondents for which plaintiff sought a declaration that defendants-respondents were not entitled to reimbursement. Accordingly, defendants-[*2]respondents' excuses are unreasonable. Further, defendants-respondents' proffered defense, that the examinations under oath requested by plaintiff are improper, is contrary to law (see 11 NYCRR 65-1.1).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2014

DEPUTY CLERK