February 23, 2018

Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))

https://www.beynensonlaw.com/case-law/premier-surgical-servs-p-c-v-allstate-ins-co-2018-ny-slip-op50273u/

Court: Appellate Term, Second Department
Decided: February 23, 2018
Citation: 2018 NY Slip Op 50273(U) · 58 Misc 3d 160(A)
Posture: Default or vacatur
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160(A), 2018 NY Slip Op 50273(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 insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering. Vacatur under CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense. Although CPLR 2005 permits acceptance of law office failure, counsel's affirmation lacked a detailed and credible explanation. The Appellate Term, Second Department, affirmed denial of the insurer's motion to vacate the provider's default judgment, finding no improvident exercise of discretion. It did not reach whether the insurer had a meritorious defense and declined to address the service challenge first asserted at oral argument because it was omitted from the insurer's brief.

Reported in New York Official Reports at Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))

[*1]

Premier Surgical Servs., P.C. v Allstate Ins. Co.

2018 NY Slip Op 50273(U) [58 Misc 3d 160(A)]

Decided on February 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-475 K C

Premier Surgical Services, P.C., as Assignee of Andradis Agramonte, Reid Belteshazzar, Rafael Hernandez, Yusif Khairov, Zhang Wei Wei, Chantal Saba, Soraya Sicard, Jose Ramirez-Vicioso, Respondent,
against
Allstate Ins. Co., Appellant.

Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 8, 2016. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to vacate a default judgment entered upon its failure to appear or answer.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]), and a court, in its discretion, may accept a claim of law office failure as an excuse (see CPLR 2005; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 904; Papandrea v Acevedo, 54 AD3d 915 [2008]). The affirmation submitted by defendant’s attorney in support of the motion did not provide a “detailed and credible” explanation of the law office failure that had caused the default (see Estrada v Selman, 130 AD3d 562, 562-563 [2015]; Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, [*2]1023 [2009]; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). Consequently, defendant’s conclusory claim of law office failure did not rise to the level of a reasonable excuse (see Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d at 1023; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 904; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784 [2008]; Piton v Cribb, 38 AD3d 741, 742 [2007]; Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 637 [2006]). In view of the foregoing, it is unnecessary to consider whether defendant demonstrated a meritorious defense to the action (see Levi v Levi, 46 AD3d 519, 520 [2007]). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant’s motion (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 784; Piton v Cribb, 38 AD3d at 742).

We note that, at oral argument, defendant=s attorney asserted that plaintiff had improperly served the summons and complaint on defendant at its Long Island office. However, since this argument was not raised in defendant=s brief, we decline to address it on appeal (see Pellescki v City of Rochester, 198 AD2d 762, 763 [1993]; see also McHale v Anthony, 41 AD3d 265, 266-267 [2007]; Crown Asset Mgt., LLC v Ferreri, 48 Misc 3d 132[A], 2015 NY Slip Op 51064[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 23, 2018

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 insurer's default in answering not excused because its attorney's affirmation gave only a conclusory, not detailed and credible, account of law office failure, making the meritorious defense unnecessary to consider.

Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

Hospital for Joint Diseases v ELRAC, Inc. (2004 NY Slip Op 07140)An unanswered verification demand tolls the 30-day payment-or-denial period under 11 NYCRR 65.15 (g) (1) (i).

Cited by

A label shows how the later decision treated this one.

Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (2021 NY Slip Op 50833(U)) FollowedThe provider's failure to file a notice of trial after a 90-day demand was not excused by its unexplained claim of law office failure.
Midland Acupuncture, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51509(U)) FollowedThe provider's law office failure affidavit did not justify its failure to respond to a 90-day demand under CPLR 3216.
Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U)) FollowedThe insurer's motion to vacate a default judgment was denied because it insufficiently alleged law-office failure as a reasonable excuse.
Silver Acupuncture, P.C. v GEICO Indem. Co. (2020 NY Slip Op 51134(U))The provider failed to give a credible law office failure excuse for filing its notice of trial after the 90-day demand period.
Faith Acupuncture, P.C. v Government Empls. Ins. Co. (2019 NY Slip Op 50829(U))The provider's unexplained law office failure did not justify its delay in filing a notice of trial after a 90-day demand.

Similar decisions

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.
Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))The insurer failed to establish a reasonable excuse for its default based on nonreceipt of process or pandemic-related staffing reductions.
Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. (2019 NY Slip Op 29225)The insurer failed to establish a reasonable excuse for default by citing the absence of a record of receiving process.
Hand By Hand, PT, P.C. v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 50774(U))The insurer failed to establish a reasonable excuse for default because it did not explain mailing both answers to counsel's prior address.
Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co. (2010 NY Slip Op 52008(U))The insurer failed to reasonably explain its failure to refile opposition papers after the clerk identified the filing error.