17-394. PEDRO MARIN, plf-res, v. EMMANUEL J. BELABE, def-app — Judgment (Ruben Franco, J.), entered April 6, 2016, reversed, with $30 costs, defendant’s motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.Based on the evidence presented at trial, and viewing it in the light most favorable to plaintiff, there was no valid line of reasoning and permissible inferences by which a rational jury could have found that plaintiff sustained a serious injury under the 90/180 day category of Insurance Law §5102(d) (see Bacon v. Bostany, 104 AD3d 625, 628 [2013]; Hamilton v. Rouse, 46 AD3d 514 [2007]; Lomeli v. Motor Veh. Acc. Indem. Corp., 26 Misc 3d 133[A], 2010 NY Slip Op 50078[U] [App Term, 1st Dept 2010]). Plaintiff’s testimony that he returned to work three weeks following the subject motor vehicle accident, albeit on a part time/light duty basis, defeats his claim that he was unable to perform “substantially all” of his usual and customary daily activities during the relevant time period (Insurance Law §5102[d]; see e.g. DaCosta v. Gibbs, 139 AD3d 487 [2016]; Martin v. Portexit Corp., 98 AD3d 63, 68 [2012]; Thomas v. City of New York, 99 AD3d 580, 582 [2012], lv denied 22 NY3d 857 [2013]; Lomeli v. Motor Veh. Acc. Indem. Corp., 26 Misc 3d 133[A]). Further, the claimed restrictions in his usual and customary activities are unsupported by objective medical evidence (see Sanchez v. Alam, 144 AD3d 485, 486 [2016]; Mitchell v. Calle, 90 AD3d 584, 585 [2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 24, 2018By: Ling-Cohan, J.P., Gonzalez, J.17-445. NORTHERN LEASING SYSTEMS, INC., plf-res, v. JAFAR ALIPOUR A/K/A JEFF ALIPOUR A/K/A JAFAR ALI-POUR, def-app — Order (Shawn T. Kelly, J.), dated May 4, 2017, reversed, with $10 costs, motion granted, default judgment vacated, and the matter remanded for further proceedings.Given the strong public policy of this State to dispose of cases on the merits (see Johnson-Roberts v. Ira Judelson Bail Bonds, 140 AD3d 509 [2016]), we favorably exercise our discretion and grant defendant’s motion to vacate the default judgment. Defendant moved to vacate within a year after he learned of the default and two months after entry of the default order, and he showed that he did not personally receive the summons and complaint in time to defend it. Contrary to the conclusion reached below, the affidavits of defendant and his wife do not indicate that the default was deliberate. Defendant’s submissions were also sufficient at this initial stage in the proceeding to set forth potentially meritorious defenses, including that he was fraudulently induced to sign the underlying equipment finance lease (see Pludeman v. Northern Leasing Sys., Inc., 87 AD3d 881, 882 [2011]; MFB Leasing, LLC v. Han, 57 Misc 3d 143[A], 2017 NY Slip Op 51416[U] [App Term, 1st Dept 2017]; Northern Leasing Sys., Inc. v. Amedeo, 56 Misc 3d 131[A], 2017 NY Slip Op 50870[U][App Term, 1st Dept 2017]; Northern Leasing Sys., Inc. v. Kollars, 56 Misc 3d 131[A], 2017 NY Slip Op 50878[U] [App Term, 1st Dept 2017]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 24, 2018By: Shulman P.J., Ling-Cohan, Gonzalez, JJ.17-409. THAMER PROPERTIES CORP., pet-lan-app, v. EMILIA NAVA, res-ten-res, -and- AISHA KURTPINAR, third-party res — Order (Miriam M. Breier, J.), entered on or about March 13, 2017, affirmed, with $10 costs.We sustain so much of the order issued below as restored the long-term (18-year) rent stabilized tenant to possession of the apartment premises. A fair interpretation of the evidence supports the finding that tenant tendered money orders for the full amount of rent arrears due pursuant to the prior (January 10, 2017) order on January 31, 2017, more than two weeks prior to her eviction from the premises (see Matter of Lafayette Boynton Hsg. Corp. v. Pickett, 135 AD3d 518 [2016]; 102-116 Eighth Ave. Assoc. v. Oyola, 299 AD2d 296 [2002]; Parkchester Apts. Co. v. Scott, 271 AD2d 273 [2000]; see also Harvey 1390 LLC v. Bodenheim, 96 AD3d 664 [2012]). However, given that tenant’s tender occurred several days after the payment deadline set forth in the prior order, the hearing court’s finding that the eviction was “unlawful” cannot be sustained.The presence of a new tenant in the apartment, who was installed by landlord two days after tenant’s eviction, pursuant to a nonstabilized lease, when the evicted tenant’s possessions had not yet been removed, does not, in these circumstances, provide a basis to disturb the restoral order (see Pomeroy Co. v. Thompson, 5 Misc 3d 51, 52 [2004]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 24, 201818-001. UTOPIA EQUIPMENT INC. A/A/O ERICKA THORNTON, plf-res, v. OCEAN HARBOR CASUALTY INSURANCE CO., def-app — Order (Debra Rose Samuels, J.), dated May 9, 2017, insofar as appealed from, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida Law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v. Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v. Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v. Infinity Ins. Co., 2017 NY Slip Op 50332[U]).In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v. Infinity Ins. Co., 2016 NY Slip Op 50391[U]).We have considered plaintiff’s remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 24, 2018
