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October 16, 2020

New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))

https://www.beynensonlaw.com/case-law/new-age-acupuncture-p-c-v-global-liberty-ins-co-2020-ny-slip-op51225u/

Court
Appellate Term, Second Department
Decided
October 16, 2020
Citation
2020 NY Slip Op 51225(U)
Posture
Default or vacatur
Outcome
Insurer prevailed
Issues
Declaratory judgment, res judicata Defaults and vacatur
Legal questions
Effect of insurer's declaratory judgment · Vacating a default: excuse and defense (see the maps)
Cite as
New Age Acupuncture, P.C. v Global Liberty Ins. Co., 2020 NY Slip Op 51225(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 calendar-call default was opened and the complaint dismissed because a declaratory judgment barred the provider's claims. After joining issue, the insurer failed to appear for a scheduled court date. It sought to open the default and dismiss based on an amended order and judgment of the Supreme Court, Bronx County, declaring no obligation to pay the provider's claims arising from the underlying accident. The Appellate Term, Second Department, reversed the denial of that motion. Following Woodson v Mendon Leasing Corp., it concluded that the motion should have been granted for sufficient reason and in the interests of substantial justice.

Reported in New York Official Reports at New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))

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

New Age Acupuncture, P.C., as Assignee of Charles Carl, Respondent,

against

Global Liberty Insurance Company, Appellant.

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).

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.



ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 16, 2020

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Effect of insurer's declaratory judgment

Open the full map

Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?

This decision: The DJ is given preclusive effect and bars every claim in the action that the court considered

Held the insurer's motion to open its calendar default and dismiss should have been granted because a Supreme Court order and judgment declared it had no obligation to pay the provider for claims from the accident.

  • Appellate DivisionApp Div 4
  • Appellate TermApp Term 132
  • Trial courtsTrial 28
2021, Appellate Division: 1 decision (1 Stayed pending DJ)2016, Appellate Division: 1 decision (1 Stayed pending DJ)2015, Appellate Division: 1 decision (1 Stay denied)2025, Appellate Division: 1 decision (1 Barred by DJ)2023, Appellate Term: 7 decisions (5 Barred by DJ, 1 Not bound: parties, 1 DJ does not reach)2022, Appellate Term: 11 decisions (9 Barred by DJ, 1 DJ does not reach, 1 Stay denied)2021, Appellate Term: 11 decisions (8 Barred by DJ, 2 Not bound: parties, 1 DJ does not reach)2020, Appellate Term: 12 decisions (9 Barred by DJ, 1 Not bound: parties, 2 DJ does not reach)2019, Appellate Term: 15 decisions (7 Barred by DJ, 3 Not bound: parties, 1 DJ does not reach, 4 Stay denied)2018, Appellate Term: 11 decisions (7 Barred by DJ, 2 Not bound: parties, 2 DJ does not reach)2017, Appellate Term: 5 decisions (3 Barred by DJ, 2 DJ does not reach)2016, Appellate Term: 15 decisions (13 Barred by DJ, 1 Not bound: parties, 1 DJ does not reach)2015, Appellate Term: 14 decisions (11 Barred by DJ, 1 Not bound: parties, 2 DJ does not reach)2014, Appellate Term: 4 decisions (4 Barred by DJ)2013, Appellate Term: 3 decisions (1 Barred by DJ, 1 DJ does not reach, 1 Stayed pending DJ)2012, Appellate Term: 3 decisions (2 Barred by DJ, 1 Not bound: parties)2011, Appellate Term: 2 decisions (1 Barred by DJ, 1 DJ does not reach)2010, Appellate Term: 2 decisions (1 Not bound: parties, 1 Stayed pending DJ)2009, Appellate Term: 1 decision (1 Barred by DJ)2008, Appellate Term: 1 decision (1 Not bound: parties)2024, Appellate Term: 3 decisions (1 Not bound: parties, 2 DJ does not reach)2025, Appellate Term: 11 decisions (1 Barred by DJ, 1 Barred in part, 1 Not bound: parties, 8 DJ does not reach)2026, Appellate Term: 1 decision (1 Not bound: parties)2023, Trial courts: 1 decision (1 DJ does not reach)2022, Trial courts: 3 decisions (2 Barred by DJ, 1 Not bound: parties)2021, Trial courts: 4 decisions (4 Barred by DJ)2020, Trial courts: 1 decision (1 Barred by DJ)2019, Trial courts: 1 decision (1 Barred by DJ)2018, Trial courts: 1 decision (1 Barred by DJ)2013, Trial courts: 2 decisions (2 Barred by DJ)2011, Trial courts: 2 decisions (1 Barred by DJ, 1 Stayed pending DJ)2009, Trial courts: 1 decision (1 Stayed pending DJ)2008, Trial courts: 1 decision (1 Not bound: parties)2007, Trial courts: 2 decisions (1 Barred by DJ, 1 Stayed pending DJ)2006, Trial courts: 1 decision (1 Not bound: parties)2024, Trial courts: 2 decisions (1 Barred by DJ, 1 DJ does not reach)2026, Trial courts: 5 decisions (4 Barred by DJ, 1 Stay denied)2012, Trial courts: 1 decision (1 Stay denied)This decision
2010201520202025
Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itDistinguished or limited

Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.

Vacating a default: excuse and defense

Open the full map

Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?

This decision: Excuse (or lack of actual notice under CPLR 317) and potentially meritorious defense or claim shown; default vacated or late answer allowed

Held the insurer's default at a calendar call should have been opened for sufficient reason and in the interests of substantial justice because a Supreme Court declaratory judgment barred the action.

  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 127
  • Trial courtsTrial 9
2022, Appellate Division: 1 decision (1 No reasonable excuse)2019, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2018, Appellate Division: 1 decision (1 Default excused)2017, Appellate Division: 1 decision (1 No meritorious defense)2014, Appellate Division: 1 decision (1 Default excused)2012, Appellate Division: 1 decision (1 Default excused)2011, Appellate Division: 1 decision (1 Default excused)2010, Appellate Division: 1 decision (1 Neither shown)2009, Appellate Division: 3 decisions (2 Default excused, 1 No meritorious defense)2008, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2007, Appellate Division: 3 decisions (3 Default excused)2006, Appellate Division: 7 decisions (7 Default excused)2005, Appellate Division: 3 decisions (1 Default excused, 1 No meritorious defense, 1 Neither shown)2004, Appellate Division: 4 decisions (2 Default excused, 1 No reasonable excuse, 1 Neither shown)2003, Appellate Division: 1 decision (1 No reasonable excuse)2026, Appellate Division: 1 decision (1 No reasonable excuse)2015, Appellate Division: 1 decision (1 Neither shown)2023, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2022, Appellate Term: 4 decisions (3 Default excused, 1 No reasonable excuse)2021, Appellate Term: 6 decisions (3 Default excused, 2 No reasonable excuse, 1 Neither shown)2020, Appellate Term: 10 decisions (2 Default excused, 7 No reasonable excuse, 1 Hearing or remittal)2019, Appellate Term: 18 decisions (5 Default excused, 11 No reasonable excuse, 2 No meritorious defense)2018, Appellate Term: 4 decisions (1 Default excused, 1 No reasonable excuse, 2 Neither shown)2017, Appellate Term: 14 decisions (5 Default excused, 6 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2016, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 Neither shown)2015, Appellate Term: 3 decisions (1 No reasonable excuse, 2 Neither shown)2014, Appellate Term: 2 decisions (1 No reasonable excuse, 1 No meritorious defense)2013, Appellate Term: 1 decision (1 No meritorious defense)2012, Appellate Term: 8 decisions (2 Default excused, 5 No reasonable excuse, 1 Neither shown)2011, Appellate Term: 5 decisions (1 Default excused, 2 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2010, Appellate Term: 12 decisions (4 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 3 Neither shown)2009, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 No meritorious defense)2008, Appellate Term: 7 decisions (1 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2007, Appellate Term: 1 decision (1 No reasonable excuse)2006, Appellate Term: 5 decisions (3 Default excused, 1 No meritorious defense, 1 Neither shown)2005, Appellate Term: 2 decisions (2 Default excused)2004, Appellate Term: 4 decisions (1 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2024, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2025, Appellate Term: 3 decisions (3 Default excused)2026, Appellate Term: 3 decisions (3 No reasonable excuse)2003, Appellate Term: 1 decision (1 Neither shown)2023, Trial courts: 1 decision (1 No reasonable excuse)2011, Trial courts: 1 decision (1 No reasonable excuse)2009, Trial courts: 1 decision (1 Default excused)2007, Trial courts: 1 decision (1 Default excused)2004, Trial courts: 1 decision (1 No meritorious defense)2026, Trial courts: 1 decision (1 Default excused)2006, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2024, Trial courts: 1 decision (1 Default excused)This decision
20052010201520202025
Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decision

Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50222(U)) Contrasted (cf., but see)A default declaratory judgment conclusively determining no obligation to pay no-fault benefits bars a contrary recovery under res judicata.

Similar decisions

  • Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51797(U))The insurer's cross motion for summary judgment dismissing the provider's complaint was granted on appeal.
  • Acupuncture Works, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52374(U))An order granting a motion without written opposition is entered on default and is not appealable, even if the motion was orally argued.
  • Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 50501(U))The provider's complaint was dismissed after it first sought to excuse noncompliance with a 90-day demand in sur-reply.
  • Super Acupuncture & Herbology, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50178(U))The insurer's vacatur motion failed because it omitted the briefing stipulation and lacked evidentiary support for law office failure.
  • Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))The insurer established at trial that the initial and follow-up EUO scheduling letters were timely and properly mailed.
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