By: Shulman, P.J., Ling-Cohan, Edmead, JJ.19-073. 1825 MADISON RETAIL, LLC, pet-lan-res, v. EXCLUSIVE DENTAL STUDIOS, PLLC, res-ten-app — Order (Carol R. Sharpe, J.) entered February 16, 2018, reversed, with $10 costs, motion granted, default final judgment vacated and the matter remanded to Civil Court for further proceedings on the holdover petition.Civil Court improperly refused to consider the merits of the commercial tenant’s motion to vacate its default. Contrary to the conclusion reached below, the motion was not required to be made to the Judge who rendered the default order and final judgment (see CPLR 2221[a][1]; Patron v. Mutual of Omaha Ins. Co., 129 AD2d 572 [1987]), especially since that Judge had recused herself from further proceedings in the matter (see CPLR 2221[a]; Matter of Pettus v. Board of Directors, 155 AD3d 485, 486 [2017]). Nor is tenant’s remedy to appeal the November 30, 2017 determination, as indicated by Civil Court, since “[a] party cannot appeal from a judgment or order entered against it upon its default” (Ana Link, Ltd. v. Mega U.S.A., Inc., 90 AD3d 472 [2011]).Turning to the merits of the motion, our review of the record discloses no reason to depart from this State’s preference for resolving controversies on the merits (see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]). While tenant’s excuse for its unreadiness to proceed on the scheduled trial date (see 22 NYCRR §208.14[b]) is not particularly compelling, it expeditiously moved for vacatur relief, its submissions indicate that it possesses a meritorious defense and there is no indication that landlord would suffer any prejudice if the default was vacated (see Casiano v. City of New York, 245 AD2d 244 [1997]). Accordingly, we favorably exercise our discretion and grant tenant’s motion.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.April 15, 2019
By: Shulman, P.J., Ling-Cohan, Edmead, JJ.19-104. BARRY SLOAN, DO, A/A/O DANIEL MERCADO, plf-res, v. GLOBAL LIBERTY INSURANCE COMPANY, OF NEW YORK, def-app — Order (Marian C. Doherty, J.), entered December 13, 2018, insofar as appealed from, affirmed, with $10 costs.We agree with Civil Court that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the physical therapy underlying plaintiff’s claims (see Palisade Surgery Ctr. LLC v. Allstate Prop. & Cas. Ins. Co., 54 Misc 3d 129[A], 2016 NY Slip Op 51824[U] [App Term, 1st Dept 2016]; AP Diagnostic Med., P.C. v. Chubb Indem. Ins. Co., 41 Misc 3d 126[A], 2013 NY Slip Op 51647[U] [App Term, 1st Dept 2013]; Doctor Richard Med., P.C. v. Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]). Thus, the defendant’s motion for summary judgment on the ground of lack of medical necessity was properly denied.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.April 15, 2019
