October 27, 2017

Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51449(U))

https://www.beynensonlaw.com/case-law/hurgada-physical-therapist-p-c-v-ny-cent-mut-fire-ins-co-2017-ny-slip-op51449u/

Court: Appellate Term, Second Department
Decided: October 27, 2017
Citation: 2017 NY Slip Op 51449(U) · 57 Misc 3d 145(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co., 57 Misc 3d 145(A), 2017 NY Slip Op 51449(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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's attorney's heavy workload did not reasonably excuse the failure to submit timely opposition to summary judgment. The Civil Court declined to consider the provider's late opposition and granted the insurer's motion on default. The provider then sought vacatur under CPLR 5015 (a) (1). Its attorney's explanation amounted to mere neglect rather than an excusable default. The Appellate Term, Second Department, affirmed the denial of vacatur and found it unnecessary to consider whether the provider had demonstrated potentially meritorious opposition to the insurer's motion.

Reported in New York Official Reports at Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51449(U))

[*1]

Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51449(U) [57 Misc 3d 145(A)]

Decided on October 27, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1718 K C

Hurgada Physical Therapist, P.C., as Assignee of Lazarre Jerome N., Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Gary Tsirelman, P.C. (Joseph Padrucco, Esq.), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 6, 2012. The order denied plaintiff’s motion to vacate a prior order of the same court (Carolyn E. Wade, J.) entered May 2, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 6, 2012 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Carolyn E. Wade, J.), by order entered May 2, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, declining to consider plaintiff’s late opposition to the motion. Plaintiff subsequently moved, pursuant to CPLR 5015 (a) (1), to vacate the order entered May 2, 2011. Plaintiff appeals from an order of the Civil Court (Wavny Toussaint, J.), entered March 6, 2012, which denied that motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, as the excuse offered by plaintiff’s attorney was, in effect, that her late submission “was the result of her heavy workload,” which “amount[s] to nothing more than mere neglect, which is not accepted as an excusable default” (A.B. Med., PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

In view of the lack of an excusable default, it is unnecessary to consider whether plaintiff sufficiently demonstrated the existence of a potentially meritorious opposition to defendant’s motion for summary judgment (see Levi v Levi, 46 AD3d 519 [2007]).

Accordingly, the order entered March 6, 2012 is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017

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 provider's default in opposing summary judgment not excused because counsel's heavy workload was mere neglect, making its potentially meritorious opposition 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

A label shows how this decision treated the case it cites.

A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U)) FollowedThe provider failed to show a reasonable excuse for submitting late opposition after stipulating to a summary judgment briefing schedule.

Similar decisions

Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))The provider failed to establish a reasonable excuse for defaulting on the insurer's summary judgment motion.
Healthworx Med., P.C. v Auto One Ins. Co. (2017 NY Slip Op 50605(U))The insurer's law-office-failure claim did not explain its failure to submit timely written opposition to the provider's summary judgment motion.
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.
SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))The provider failed to establish a reasonable excuse or a meritorious claim warranting vacatur of its dismissal for failure to proceed at trial.
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.