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/
- 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
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 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
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) ยง 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.