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April 11, 2017

S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 50551(U))

https://www.beynensonlaw.com/case-law/s-r-med-p-c-v-allstate-prop-cas-ins-co-2017-ny-slip-op50551u/

Court
Appellate Term, Second Department
Decided
April 11, 2017
Citation
2017 NY Slip Op 50551(U)
Posture
Default or vacatur
Outcome
Split result
Issues
Jurisdiction and service Defaults and vacatur
Legal questions
Vacating a default: excuse and defense · Service and jurisdiction over the insurer (see the maps)
Cite as
S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co., 2017 NY Slip Op 50551(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 failed to establish valid service outside New York City, while the insurer failed to justify acceptance of its late answer. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's request to compel acceptance of its untimely answer, but affirmed denial of the provider's default-judgment motion. The insurer essentially conceded that it supplied neither a reasonable excuse nor a meritorious defense. Under New York City Civil Court Act §§ 403 and 404, the provider's service in Suffolk County required a statutory basis for service outside the city. Neither its complaint nor its motion papers alleged facts supporting such jurisdiction, so it failed to establish entitlement to a default judgment under CPLR 3215.

Reported in New York Official Reports at S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 50551(U))

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

S & R Medical, P.C., as Assignee of LYUDMILA ZHIRNOVA, Appellant,

against

Allstate Property & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 15, 2014. The order, insofar as appealed from, denied plaintiff’s motion to enter a default judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to accept an untimely answer.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to accept an untimely answer is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant failed to timely answer. Plaintiff subsequently moved for leave to enter a default judgment, pursuant to CPLR 3215, and defendant cross-moved to, among other things, compel plaintiff to accept an untimely answer previously served, which answer included the affirmative defense of lack of personal jurisdiction. Plaintiff appeals from so much of an order of the Civil Court as denied its motion and granted the aforestated branch of defendant’s cross motion.

The branch of defendant’s cross motion seeking to compel plaintiff to accept the untimely answer should have been denied. “A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action, when opposing a motion for leave to enter judgment upon its failure to appear or answer and moving to extend the time to answer or to compel the acceptance of an untimely answer” (Lipp v Port Auth. of NY & N.J., 34 AD3d 649, 649 [2006]; see also Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969 [2016]; Kennedy v City of New York, 114 AD3d 831, 832 [2014]; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). Here, defendant essentially concedes that it did neither, and so that branch of its cross motion should have been denied.

However, plaintiff’s motion for leave to enter a default judgment was properly denied. Plaintiff’s affidavit of service demonstrates that service was made in Hauppage, which is in Suffolk County, outside the City of New York. Section 403 of the New York City Civil Court Act provides that service “shall be made only within the city of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state.” Plaintiff appears to be arguing that defendant is not a resident of the City and, thus, to be implicitly arguing that the service was valid pursuant to CCA 404, which provides for service outside the City upon nonresidents in certain enumerated instances. However, defendant’s position is that it is a [*2]resident of the City of New York, in which case, pursuant to CCA 403, service was invalid. As neither plaintiff’s complaint nor its motion papers set forth any facts allowing for jurisdiction to be acquired over defendant by service outside the City of New York pursuant to CCA 404 (see All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677 [App Term, 2d Dept, 9th & 10th Jud Dists 1970]), plaintiff has failed to show that service had been validly effectuated, and, thus, plaintiff failed to establish its entitlement to a default judgment. Consequently, its motion was properly denied (see CPLR 3215; TCIF REO GCM, LLC v Walker, 139 AD3d 704 [2016]; Dupps v Betancourt, 99 AD3d 855 [2012]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to accept the untimely answer is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.


Decision Date: April 11, 2017

Legal questions (2)

Questions 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 the party showed neither a reasonable excuse nor a potentially meritorious defense or claim

Held the insurer's cross motion to compel acceptance of its untimely answer should have been denied because it essentially conceded it offered neither a reasonable excuse nor a meritorious defense.

  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 127
  • Trial courtsTrial 9
2022, Appellate Division: 1 decision (1 No reasonable excuse)2019, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2018, Appellate Division: 1 decision (1 Default excused)2017, Appellate Division: 1 decision (1 No meritorious defense)2014, Appellate Division: 1 decision (1 Default excused)2012, Appellate Division: 1 decision (1 Default excused)2011, Appellate Division: 1 decision (1 Default excused)2010, Appellate Division: 1 decision (1 Neither shown)2009, Appellate Division: 3 decisions (2 Default excused, 1 No meritorious defense)2008, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2007, Appellate Division: 3 decisions (3 Default excused)2006, Appellate Division: 7 decisions (7 Default excused)2005, Appellate Division: 3 decisions (1 Default excused, 1 No meritorious defense, 1 Neither shown)2004, Appellate Division: 4 decisions (2 Default excused, 1 No reasonable excuse, 1 Neither shown)2003, Appellate Division: 1 decision (1 No reasonable excuse)2026, Appellate Division: 1 decision (1 No reasonable excuse)2015, Appellate Division: 1 decision (1 Neither shown)2023, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2022, Appellate Term: 4 decisions (3 Default excused, 1 No reasonable excuse)2021, Appellate Term: 6 decisions (3 Default excused, 2 No reasonable excuse, 1 Neither shown)2020, Appellate Term: 10 decisions (2 Default excused, 7 No reasonable excuse, 1 Hearing or remittal)2019, Appellate Term: 18 decisions (5 Default excused, 11 No reasonable excuse, 2 No meritorious defense)2018, Appellate Term: 4 decisions (1 Default excused, 1 No reasonable excuse, 2 Neither shown)2017, Appellate Term: 14 decisions (5 Default excused, 6 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2016, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 Neither shown)2015, Appellate Term: 3 decisions (1 No reasonable excuse, 2 Neither shown)2014, Appellate Term: 2 decisions (1 No reasonable excuse, 1 No meritorious defense)2013, Appellate Term: 1 decision (1 No meritorious defense)2012, Appellate Term: 8 decisions (2 Default excused, 5 No reasonable excuse, 1 Neither shown)2011, Appellate Term: 5 decisions (1 Default excused, 2 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2010, Appellate Term: 12 decisions (4 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 3 Neither shown)2009, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 No meritorious defense)2008, Appellate Term: 7 decisions (1 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2007, Appellate Term: 1 decision (1 No reasonable excuse)2006, Appellate Term: 5 decisions (3 Default excused, 1 No meritorious defense, 1 Neither shown)2005, Appellate Term: 2 decisions (2 Default excused)2004, Appellate Term: 4 decisions (1 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2024, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2025, Appellate Term: 3 decisions (3 Default excused)2026, Appellate Term: 3 decisions (3 No reasonable excuse)2003, Appellate Term: 1 decision (1 Neither shown)2023, Trial courts: 1 decision (1 No reasonable excuse)2011, Trial courts: 1 decision (1 No reasonable excuse)2009, Trial courts: 1 decision (1 Default excused)2007, Trial courts: 1 decision (1 Default excused)2004, Trial courts: 1 decision (1 No meritorious defense)2026, Trial courts: 1 decision (1 Default excused)2006, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2024, Trial courts: 1 decision (1 Default excused)This decision
20052010201520202025
Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decision

Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 21 (this one included) are in the same category.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Method, place, timing or proof of service on the insurer failed, so no jurisdiction was obtained

Held the provider failed to show valid service because the insurer was served in Suffolk County, outside the City, contrary to CCA 403, and no facts supported extraterritorial service under CCA 404, so default judgment was denied.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 108
  • Trial courtsTrial 15
2013, Appellate Division: 1 decision (1 Objection waived/not required)2010, Appellate Division: 1 decision (1 Jurisdiction upheld)2008, Appellate Division: 2 decisions (2 Jurisdiction upheld)2006, Appellate Division: 1 decision (1 Jurisdiction upheld)2003, Appellate Division: 1 decision (1 Jurisdiction upheld)2022, Appellate Term: 7 decisions (1 Jurisdiction upheld, 5 Service defective, 1 No jurisdiction over insurer)2021, Appellate Term: 4 decisions (2 Service defective, 1 No jurisdiction over insurer, 1 Hearing or discovery needed)2020, Appellate Term: 8 decisions (2 Jurisdiction upheld, 4 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2019, Appellate Term: 53 decisions (4 Jurisdiction upheld, 6 Service defective, 42 No jurisdiction over insurer, 1 Objection waived/not required)2018, Appellate Term: 1 decision (1 No jurisdiction over insurer)2017, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 Service defective)2016, Appellate Term: 1 decision (1 Jurisdiction upheld)2015, Appellate Term: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2014, Appellate Term: 4 decisions (1 Jurisdiction upheld, 3 No jurisdiction over insurer)2013, Appellate Term: 4 decisions (1 Jurisdiction upheld, 1 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2011, Appellate Term: 3 decisions (3 Service defective)2010, Appellate Term: 5 decisions (2 Jurisdiction upheld, 3 No jurisdiction over insurer)2009, Appellate Term: 2 decisions (2 Jurisdiction upheld)2007, Appellate Term: 2 decisions (2 Service defective)2006, Appellate Term: 1 decision (1 Jurisdiction upheld)2004, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 No jurisdiction over insurer)2023, Appellate Term: 1 decision (1 Jurisdiction upheld)2025, Appellate Term: 2 decisions (2 Hearing or discovery needed)2026, Appellate Term: 2 decisions (2 Jurisdiction upheld)2005, Appellate Term: 1 decision (1 Service defective)2024, Appellate Term: 1 decision (1 Jurisdiction upheld)2023, Trial courts: 1 decision (1 Jurisdiction upheld)2021, Trial courts: 1 decision (1 Service defective)2012, Trial courts: 1 decision (1 Jurisdiction upheld)2009, Trial courts: 1 decision (1 Jurisdiction upheld)2008, Trial courts: 2 decisions (2 Service defective)2005, Trial courts: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2004, Trial courts: 1 decision (1 Jurisdiction upheld)2003, Trial courts: 1 decision (1 Service defective)2026, Trial courts: 4 decisions (1 Jurisdiction upheld, 2 Service defective, 1 No jurisdiction over insurer)2025, Trial courts: 1 decision (1 Service defective)This decision
20052010201520202025
Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decision

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 34 (this one included) are in the same category.

Similar decisions

  • 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.
  • S & G Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 50359(U))The insurer's motion to dismiss for failure to prosecute was premature under CPLR 3216 (b) (2).
  • Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U))The provider failed to excuse its seven-year delay in seeking a default judgment or show a meritorious claim.
  • Aminov v Allstate Ins. Co. (2019 NY Slip Op 50056(U))The insurer's conclusory denial of service failed to rebut the process server's affidavit or excuse its default.
  • Santomauro v Allstate Ins. Co. (2019 NY Slip Op 51413(U))The insurer's affidavits failed to establish a reasonable excuse for defaulting despite prima facie proof of proper service.
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