May 29, 2019
Global Liberty Ins. Co. v Shahid Mian, M.D., P.C. (2019 NY Slip Op 04144)
https://www.beynensonlaw.com/case-law/global-liberty-ins-co-v-shahid-mian-m-d-p-c-2019-ny-slip-op-04144/
- Decided
- May 29, 2019
- Citation
- 2019 NY Slip Op 04144 · 172 AD3d 1332
- Posture
- Default or vacatur
- Outcome
- Provider prevailed
- Issues
- Defaults and vacatur
- Legal questions
- Vacating a default: excuse and defense (see the maps)
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.
Reported in New York Official Reports at Global Liberty Ins. Co. v Shahid Mian, M.D., P.C. (2019 NY Slip Op 04144)
| Global Liberty Ins. Co. v Shahid Mian, M.D., P.C. |
| 2019 NY Slip Op 04144 [172 AD3d 1332] |
| May 29, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Global Liberty Ins. Co., Appellant, v Shahid Mian, M.D., P.C., as Assignee of Beauvoir Fekier, Respondent. |
The Law Office of Jason Tenenbaum, P.C., Garden City, NY (Roman Kravchenko of counsel), for appellant.
Samandarov & Associates, P.C., Floral Park, NY (Eli Shmulik of counsel), for respondent.
In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered January 18, 2018. The order granted the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.
Ordered that the order is affirmed, with costs.
In December 2016, the plaintiff, a no-fault insurance carrier, commenced this action pursuant to Insurance Law § 5106 (c) for a de novo adjudication of a dispute regarding its denial of the defendant’s claim for no-fault insurance benefits for medical services rendered to its assignor. Prior thereto, an arbitrator had determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.
After the defendant failed to timely appear or answer the complaint in this action, the plaintiff moved for leave to enter a default judgment. In an order entered March 13, 2017, the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment. The court subsequently issued a default judgment dated July 31, 2017.
Thereafter, in September 2017, the defendant moved pursuant to CPLR 5015 (a) (1) to vacate its default. The Supreme Court granted the motion, and the plaintiff appeals.
A defendant seeking to vacate its default pursuant to CPLR 5015 (a) (1) on the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]). Here, the defendant demonstrated a reasonable excuse for its default (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746). Moreover, although certain of the evidence submitted by the defendant to demonstrate a potentially meritorious defense was not in admissible form (see generally OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716 [2017]; King v King, 99 AD3d 672, 673 [2012]), the defendant demonstrated a potentially meritorious defense to the action by attaching to its moving papers copies of the arbitration award in which the arbitrator determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees, as well as copies of arbitration materials reflecting that the plaintiff had appealed the award to a master arbitrator, who affirmed the award. In light of the defendant setting forth evidence that it had previously prevailed before an arbitrator on the merits of its defense, the defendant demonstrated a potentially meritorious defense to the action (see Rosenzweig v Gubner, 2018 NY Slip Op 32393[U], *7-8 [Sup Ct, Kings County 2018]; Matter of Charny [Gliksman], 2002 NY Slip Op 40004[U], *11 [Sup Ct, Kings County 2002]; see generally Bevona v Blue Star Realty Corp., 264 AD2d 586, 587 [1999]; Lawyers Coop. Publ. v Scott, 255 AD2d 952, 952 [1998]; Simpson v Mal Serv. Corp., 205 AD2d 419, 419 [1994]). Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.
The plaintiff’s remaining contentions are without merit. Scheinkman, P.J., Dillon, Maltese and LaSalle, JJ., concur.
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.
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
Upheld vacatur of the provider's default in answering the insurer's de novo action because it showed a reasonable excuse and a potentially meritorious defense through the arbitration and master arbitration awards in its favor.
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.
- Allstate Ins. Co. v North Shore Univ. Hosp. (2018 NY Slip Op 05268) FollowedThe provider's reasonable excuse and potentially meritorious defense warranted vacating its default in the insurer's de novo action.
Similar decisions
- Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C. (2019 NY Slip Op 02317)The insurer established service, the provider's default, and a viable claim for a default judgment in its de novo no-fault action.
- American Tr. Ins. Co. v Bruno Med. Supply, Inc. (2026 NY Slip Op 01332)The provider's contradictory and conclusory allegations of law office failure did not reasonably excuse its default in answering.
- New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)The insurer's clerical-oversight affidavit and potentially meritorious defense justified vacating its default judgment.
- Art of Healing Medicine, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51433(U))The insurer's high claims volume did not reasonably excuse a six-month failure to review a summons and complaint.
- Lancer Ins. Co. v Fishkin (2022 NY Slip Op 06921)The insurer established entitlement to a default judgment in its de novo action, and the provider failed to offer a reasonable excuse.