March 5, 2021

Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))

https://www.beynensonlaw.com/case-law/physiodynamics-llc-v-allstate-ins-co-2021-ny-slip-op-50178u/

Court
Appellate Term, Second Department
Decided
March 5, 2021
Citation
2021 NY Slip Op 50178(U) · 70 Misc 3d 143(A)
Posture
Default or vacatur
Outcome
Provider prevailed
Issues
Defaults and vacatur
Cite as
Physiodynamics, LLC v Allstate Ins. Co., 70 Misc 3d 143(A), 2021 NY Slip Op 50178(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's motion to vacate a default judgment was denied because it insufficiently alleged law-office failure as a reasonable excuse. CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense, and the insurer's excuse was inadequate. The Appellate Term, Second Department, reversed the order granting vacatur of the judgment entered for the insurer's failure to appear or answer.

Reported in New York Official Reports at Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))

[*1]
Physiodynamics, LLC v Allstate Ins. Co.
2021 NY Slip Op 50178(U) [70 Misc 3d 143(A)]
Decided on March 5, 2021
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1191 K C
Physiodynamics, LLC, as Assignee of Robert Utnick, Appellant,

against

Allstate Ins. Co., Respondent.

Gary Tsirelman, P.C. (Selina Chin and David Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered July 3, 2019. The order granted defendant’s motion to vacate a judgment of that court entered October 4, 2017 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered July 3, 2019, which granted defendant’s motion to vacate a judgment entered October 4, 2017 upon defendant’s failure to appear or answer the complaint.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]). As plaintiff argues, defendant did not sufficiently allege its purported reasonable excuse of law office failure (see Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant’s motion should have been denied.

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 5, 2021

Similar decisions