Long Island Minimally Invasive Surgery, P.C. V. Lester
Court: New York Supreme Court, Nassau County (2006)
Citation: 12 Misc.3d 1183(A), 824 N.Y.S.2d 763, 2006 WL 1993769 (N.Y.Sup.), 2006 N.Y. Slip Op. 51386(U)
Background: The defendant agreed to pay her insurance reimbursement to our client, Long Island Minimally Invasive Surgery, P.C. (LIMIS), for services rendered and then failed to do so.
Details of the case: The defendant argues that she had entered into an oral agreement with LIMIS to pay the owed amount in installments. She did not pay off the entire balance, and LIMIS commenced an action for damages and obtained a default judgment against the defendant.
The defendant argued that service of process was not properly effected, and the summons served on her was not sufficient since she only received a summons in the mail instead of also having it personally served on her. Therefore, she argued, the default judgment should be vacated.
Decision: The Supreme Court found that the defendant’s motion to vacate the default judgment cannot succeed because she had knowledge of the lawsuit and because LIMIS had shown that service was properly executed. LIMIS was able to produce an affidavit of service showing it was delivered and served on someone of a suitable age at the defendant’s residence and that a copy was mailed to the residence.
Since the defendant could not properly refute this evidence, the Supreme Court rejected her improper service claim. The Supreme Court also commented that her argument that a pre-existing oral agreement with LIMIS could “somehow nullify her need to respond to the lawsuit is unreasonable and inexcusable.”
The court affirmed the original order and upheld the judgment entered.
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