April 6, 2018

SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))

https://www.beynensonlaw.com/case-law/sz-med-p-c-v-allstate-ins-co-2018-ny-slip-op-50497u/

Court: Appellate Term, Second Department
Decided: April 6, 2018
Citation: 2018 NY Slip Op 50497(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur

Cite as

SZ Med., P.C. v Allstate Ins. Co., 2018 NY Slip Op 50497(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 establish a reasonable excuse or a meritorious claim warranting vacatur of its dismissal for failure to proceed at trial. Counsel appeared only to seek an adjournment in the then 11-year-old action, conceding that the provider had no witness and was unready. The action was dismissed under 22 NYCRR 208.14 (b) (2). Applying CPLR 5015 (a), the Appellate Term, Second Department, found no explanation for the lack of readiness, failure to seek an advance adjournment, or seven-month delay in seeking vacatur. The provider also failed to show abuse of discretion in denying the adjournment or a meritorious cause of action. The order denying vacatur was affirmed in the insurer's favor.

Reported in New York Official Reports at SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))

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

SZ Medical, P.C., as Assignee of Mahaisri Singh, Appellant,
against
Allstate Insurance Company, Respondent.

Amos Weinberg, Esq., for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied plaintiff’s motion to vacate an oral order of that court issued July 31, 2013 dismissing the action based on plaintiff’s failure to proceed at trial.

ORDERED that the order entered April 3, 2014 is affirmed, without costs.

This action by a provider to recover assigned first-party no-fault benefits was commenced in 2002. In 2013, the case was scheduled for trial for the first time. On July 31, 2013, plaintiff’s counsel appeared only to seek an adjournment. Plaintiff concedes that it had no witness and was not ready to proceed. The court denied plaintiff’s request for an adjournment and dismissed the action pursuant to Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (b) (2). About seven months later, plaintiff moved to vacate that dismissal, which motion was denied by order entered April 3, 2014, from which plaintiff appeals.

Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal “it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action” (V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc [*2]3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain that burden here. Plaintiff has not demonstrated that the Civil Court’s denial of plaintiff’s request for an adjournment was an abuse of discretion (see Nieves v Tomonska, 306 AD2d 332 [2003]). Plaintiff did not show why it could not have been prepared to proceed on the day set for the trial of the then 11-year-old case, or why it had not attempted to obtain an adjournment in advance, or any other extenuating circumstances. Plaintiff also did not explain why it had waited seven months to move to vacate its default. In any event, plaintiff has not demonstrated that it has a meritorious cause of action.

Accordingly, the order entered April 3, 2014 is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018

Cited by

A label shows how the later decision treated this one.

Psychmetrics Med., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50690(U)) FollowedThe provider established a reasonable excuse for failing to proceed at trial because its witness was out of the country.

Similar decisions

A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))The provider failed to show a reasonable excuse for submitting late opposition after stipulating to a summary judgment briefing schedule.
V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 29226)The provider's conclusory claim that counsel failed to calendar the trial date did not reasonably excuse its default.
Clinton Place Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 50400(U))The insurer's pattern of neglect did not warrant vacatur of the default judgment entered after it failed to oppose summary judgment.
Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))The insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering.
Bayshore Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51121(U))The insurer's explanation of law office failure during a file transfer showed attorney neglect and did not reasonably excuse its default.