Second, Eleventh and Thirteenth JudicIal Districts Released on: October 21, 2020
By: Aliotta, P.J., Weston, Toussaint, JJ. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C., for respondent (no brief filed). 2018-1465 K C. NEW AGE ACUPUNCTURE, P.C. v. GLOBAL LIBERTY INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered June 15, 2018. The order denied defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint. ORDERED that the order is reversed, with $30 costs, and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted. After issue was joined in this action by a provider to recover assigned first-party no-fault benefits arising from an accident that occurred on October 19, 2011, defendant defaulted in appearing for a scheduled court date. Defendant moved to, in effect, open its default and dismiss the complaint on the ground that, by amended order and judgment dated August 1, 2016, the Supreme Court, Bronx County, had declared, insofar as is relevant here, that defendant has no obligation to pay plaintiff for claims arising out of the accident underlying this claim. Defendant appeals from an order of the Civil Court entered June 15, 2018 denying defendant’s motion to, in effect, open its default and, upon opening the default, dismiss the complaint. In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v. Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 [2003]). Accordingly, the order entered June 15, 2018 is reversed and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. October 16, 2020
