July 13, 2018

Josephson v State Farms Ins. Co. (2018 NY Slip Op 51132(U))

https://www.beynensonlaw.com/case-law/josephson-v-state-farms-ins-co-2018-ny-slip-op-51132u/

Court: Appellate Term, Second Department
Decided: July 13, 2018
Citation: 2018 NY Slip Op 51132(U) · 60 Misc 3d 139(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Josephson v State Farms Ins. Co., 60 Misc 3d 139(A), 2018 NY Slip Op 51132(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 failed to show that it took proceedings to enter judgment within one year of the insurer's calendar default. The Appellate Term, Second Department, affirmed the order vacating the provider's default judgment and dismissing the complaint under CPLR 3215 (c). The judgment had been entered after the insurer failed to appear at a calendar call. The provider did not rebut the insurer's motion by demonstrating timely proceedings for entry of judgment. CPLR 3215 (c) requires dismissal as abandoned when no such proceedings are taken within one year, unless sufficient cause is shown. The Civil Court did not abuse its discretion in granting the insurer's motion.

Reported in New York Official Reports at Josephson v State Farms Ins. Co. (2018 NY Slip Op 51132(U))

[*1]

Josephson v State Farms Ins. Co.

2018 NY Slip Op 51132(U) [60 Misc 3d 139(A)]

Decided on July 13, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2018

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

PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-2716 Q C

Dr. George F. Josephson, as Assignee of Dale Cotterell, Appellant,
against
State Farms Insurance Company, Respondent.

Glinkenhouse, Floumanhaft & Queen by Glinkenhouse Queen (Alan Queen of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered October 4, 2016. The order granted defendant’s motion to vacate a judgment of that court entered February 9, 2016, upon defendant’s failure to appear at a calendar call of the case on June 30, 2008, and to dismiss the complaint.

ORDERED that the order is affirmed, without 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 granted a motion by defendant State Farm Insurance Company (sued herein as State Farms Insurance Company) to vacate a default judgment that had been entered on February 9, 2016, upon defendant’s failure to appear at a calendar call of the case on June 30, 2008, and to dismiss the complaint pursuant to CPLR 3215 (c) for failure to enter the default judgment within one year. Plaintiff did not rebut defendant’s motion papers by demonstrating that it had taken proceedings for the entry of a judgment within one year of defendant’s calendar default on June 30, 2008 (see CPLR 3215 [a]). As CPLR 3215 (c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed,” the Civil Court did not abuse its discretion in [*2]granting defendant’s motion to vacate the default judgment and dismiss the complaint (see Duperval v Hoyle,272 AD2d 369 [2000]; see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. Manhattan Telecom. Corp. v H & A Locksmith, Inc.,21 NY3d 200, 203-204 [2013] [reversing the vacatur of a default judgment on the ground that the plaintiff had not complied with CPLR 3215 (f) and stating that the court that entered the judgment had “not usurped a power it does not have”]).

Accordingly, the order is affirmed.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 13, 2018

Cited by

Grand Med. Supply Corp. v Permanent Gen. Assur. Corp. (2025 NY Slip Op 50491(U))The provider's complaint was dismissed as abandoned because it failed to timely seek a default judgment or justify its delay.

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