May 22, 2014

Queens-Roosevelt Med. Rehab, P.C. v Alea Care of Gab Robins Ins. Co. (2014 NY Slip Op 50867(U))

https://www.beynensonlaw.com/case-law/queens-roosevelt-med-rehab-p-c-v-alea-care-of-gab-robins-ins-co-2014ny-slip-op-50867u/

Court: Appellate Term, Second Department
Decided: May 22, 2014
Citation: 2014 NY Slip Op 50867(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Queens-Roosevelt Med. Rehab, P.C. v Alea Care of Gab Robins Ins. Co., 2014 NY Slip Op 50867(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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.

A provider seeking to vacate a default must support a law office failure excuse with a detailed and credible explanation. The provider sought to vacate the portion of an order granting the insurer summary judgment on default and dismissing certain no-fault claims. Counsel alleged that opposition had been served but that it was unknown why the attorney appearing on the motion lacked the written opposition. That statement did not adequately detail and substantiate the alleged failure. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying vacatur, leaving the insurer's dismissal of those claims intact.

Reported in New York Official Reports at Queens-Roosevelt Med. Rehab, P.C. v Alea Care of Gab Robins Ins. Co. (2014 NY Slip Op 50867(U))

[*1]

Queens-Roosevelt Med. Rehab, P.C. v Alea Care of Gab Robins Ins. Co.

2014 NY Slip Op 50867(U) [43 Misc 3d 142 (A)(A)]

Decided on May 22, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2014

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

PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ.
2011-2545 Q C

Queens-Roosevelt Medical Rehab, P.C. as Assignee of ESTELA MODESTO, Appellant,
against
Alea Care of Gab Robins Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered June 20, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking to vacate so much of a prior order of the same court (Cheree A. Buggs, J.) entered May 10, 2011 as granted, on default, the branch of a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment dismissing so much of the complaint as sought to recover $13,571.37 from Alea.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order dated May 10, 2011, granted, on default, a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment (1) dismissing so much of the complaint as was asserted against GAB Robins and (2) dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. Plaintiff subsequently moved to, among other things, vacate so much of that order as granted the branch of the motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. By order dated June 20, 2011, the Civil Court denied plaintiff’s motion.

A claim of law office failure may be accepted as a reasonable excuse for a default where the claim is supported by a “detailed and credible” explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479 [2004]). Conclusory and unsubstantiated claims of law office failure are insufficient (see Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007] Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341 [2002]). Here, plaintiff’s attorney alleged only that opposition to the motion had been served upon Alea, and that it was “unknown why the attorney who appeared in court on May 10, 2011 did not have the written opposition.” This statement did not “adequately detail and substantiate the alleged law office failure” (see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: May 22, 2014

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 the summary judgment motion unexcused because counsel's statement that it was unknown why the appearing attorney lacked the opposition was conclusory, not a detailed law office failure explanation.

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 by

A label shows how the later decision treated this one.

Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U)) FollowedThe provider failed to establish a reasonable excuse for defaulting on the insurer's summary judgment motion.

Similar decisions

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.
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.
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.
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.