December 13, 2019

Pavlova v Nationwide Ins. (2019 NY Slip Op 52056(U))

https://www.beynensonlaw.com/case-law/pavlova-v-nationwide-ins-2019-ny-slip-op-52056u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52056(U) · 66 Misc 3d 130(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Pavlova v Nationwide Ins., 66 Misc 3d 130(A), 2019 NY Slip Op 52056(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 provider's motion to vacate default summary judgment dismissing its complaint was denied for lack of a reasonable excuse. The Appellate Term, Second Department, affirmed, finding no improvident exercise of discretion in that determination. It recited CPLR 5015 (a) (1)'s requirement of both a reasonable excuse for failing to oppose the insurer's motion and a meritorious defense, without describing the proffered excuse.

Reported in New York Official Reports at Pavlova v Nationwide Ins. (2019 NY Slip Op 52056(U))

[*1]

Pavlova v Nationwide Ins.

2019 NY Slip Op 52056(U) [66 Misc 3d 130(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1316 K C

Ksenia Pavlova, D.O., as Assignee of Ortiz, Jorge, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 27, 2018. The order denied plaintiff’s motion to vacate an order of the same court entered October 6, 2016 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 27, 2018 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion to vacate the order of that court entered October 6, 2016 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

“Pursuant to CPLR 5015 (a) (1), a court may vacate a default in opposing a motion where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense to the motion” (SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 744-745 [2007]). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the . . . [c]ourt” (Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612 [2018]). We find that the Civil Court did not improvidently exercise its discretion in finding that plaintiff had failed to demonstrate a reasonable excuse for its default.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

Legal questions

A question 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.

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: Relief denied because no reasonable excuse (or, under CPLR 317, no lack of actual notice) was shown; meritorious defense accepted or not reached

Held the lower court did not improvidently exercise its discretion in finding that the provider failed to demonstrate a reasonable excuse for its default in opposing the insurer's summary judgment motion.

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, 64 (this one included) are in the same category.

Similar decisions

Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U))The insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51634(U))The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed.
Pavlova v Travelers Ins. Co. (2018 NY Slip Op 51778(U))The provider's verification-mailing affidavit raised a factual issue as to whether its no-fault action was premature.
Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U))The insurer failed to establish a timely denial after the assignor's alleged failure to appear for an initial and a follow-up EUO. It therefore did not demonstrate that its EUO defense was free from preclusion, and summary judgment dismissing the complaint should have been denied.
Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))The insurer's attorney's affirmation established the provider's EUO nonappearance, and the insurer's proof supported proper mailing of the denial.