February 23, 2016

Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))

https://www.beynensonlaw.com/case-law/gaetane-physical-therapy-p-c-v-21st-century-n-am-ins-co-2016-ny-slipop-50215u/

Court: Appellate Term, Second Department
Decided: February 23, 2016
Citation: 2016 NY Slip Op 50215(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co., 2016 NY Slip Op 50215(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 for defaulting on the insurer's summary judgment motion. Despite a stipulated schedule for opposition and reply papers, the provider did not oppose the insurer's motion alleging lack of medical necessity. The provider sought vacatur almost seven months later, asserting law office failure. Under CPLR 5015 (a) and CPLR 2005, law office failure may constitute a reasonable excuse when supported by a detailed, credible explanation. The provider's conclusory, unsubstantiated claim did not satisfy that standard. The Appellate Term, Second Department, affirmed denial of vacatur and found it unnecessary to determine whether the provider had potentially meritorious opposition.

Reported in New York Official Reports at Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))

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

Gaetane Physical Therapy, P.C., as Assignee of ERROL McPHERSON, Appellant,
against
21st Century North America Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 27, 2014. The order denied plaintiff’s motion to vacate a prior order of the same court (Pamela L. Fisher, J.) entered November 21, 2012, which granted, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 27, 2014 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity for the services at issue. Although the parties entered into a stipulation adjourning defendant’s motion and setting forth dates for the submission of opposition and reply papers, plaintiff did not oppose defendant’s motion. By order entered November 21, 2012, the Civil Court granted defendant’s motion “with no opposition” and dismissed the complaint with prejudice. Defendant served the order with notice of entry on November 29, 2012. Thereafter, on June 7, 2013, plaintiff, asserting law office failure, moved to vacate the November 21, 2012 order, and, upon vacatur, to deny defendant’s motion for summary judgment. Defendant opposed plaintiff’s motion. Plaintiff appeals from an order of the Civil Court entered March 27, 2014 denying plaintiff’s motion.

The Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion, in view of the almost seven-month delay in moving to vacate the order and plaintiff’s failure to establish a reasonable excuse for its default (see CPLR 5015 [a]). A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Queens-Roosevelt Med. Rehab., P.C. v Alea Care of Gab Robins Ins. Co., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff’s claim of law office failure was conclusory and unsubstantiated, and, under the circumstances presented, did not constitute a reasonable excuse for the default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90; Queens-Roosevelt Med. Rehab., P.C., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U]). Consequently, it is unnecessary to determine whether plaintiff demonstrated the existence of a potentially meritorious opposition to defendant’s [*2]summary judgment motion (see Herrera, 100 AD3d at 963; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

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

Decision Date: February 23, 2016

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

Upheld denial of the provider's motion to vacate summary judgment granted on its failure to oppose because its law office failure claim was conclusory and unsubstantiated and it delayed almost seven months in moving.

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.

Queens-Roosevelt Med. Rehab, P.C. v Alea Care of Gab Robins Ins. Co. (2014 NY Slip Op 50867(U)) FollowedA provider seeking to vacate a default must support a law office failure excuse with a detailed and credible explanation.

Similar decisions

VE Med. Care, P.C. v Travelers Cas. Co. of Conn. (2015 NY Slip Op 50909(U))The provider failed to offer a reasonable excuse for defaulting in opposition to the insurer's summary judgment motion.
Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51449(U))The provider's attorney's heavy workload did not reasonably excuse the failure to submit timely opposition to summary judgment.
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.
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.
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.