June 17, 2013

Central Radiology Servs., P.C. v First Am. Ins. (2013 NY Slip Op 51031(U))

https://www.beynensonlaw.com/case-law/central-radiology-servs-p-c-v-first-am-ins-2013-ny-slip-op51031u/

Court: Appellate Term, Second Department
Decided: June 17, 2013
Citation: 2013 NY Slip Op 51031(U) · 40 Misc 3d 126(A)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Jurisdiction and service Defaults and vacatur Priority, other coverage
Legal questions: Vacating a default: excuse and defense · Service and jurisdiction over the insurer · Workers' comp or other insurer primary (see the maps)

Cite as

Central Radiology Servs., P.C. v First Am. Ins., 40 Misc 3d 126(A), 2013 NY Slip Op 51031(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 submitted to personal jurisdiction by seeking default vacatur and leave to defend on the merits without a jurisdictional objection. The insurer sought vacatur under CPLR 5015 (a) (1) and dismissal under CPLR 3211 (a) (8), alleging service on its claims administrator instead of the insurer. The jurisdictional challenge failed because of its earlier voluntary participation. Vacatur also failed: the administrator's conclusory assertion that workers' compensation was primary supplied no evidence that the assignor was acting within the course of employment, and thus no meritorious defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering to denial of both requests.

Reported in New York Official Reports at Central Radiology Servs., P.C. v First Am. Ins. (2013 NY Slip Op 51031(U))

[*1]

Central Radiology Servs., P.C. v First Am. Ins.

2013 NY Slip Op 51031(U) [40 Misc 3d 126(A)]

Decided on June 17, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-1330 Q C.

Central Radiology Services, P.C. as Assignee of NICOLE CADET-CHERUBIN, Respondent, —
against
First America Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 7, 2010. The order, insofar as appealed from, (1) upon, in effect, granting the branches of defendant’s motion seeking leave to reargue or, in the alternative, to renew its prior motion to vacate an order of the same court (William A. Viscovich, J.) entered December 19, 2008, which had granted plaintiff’s unopposed motion for leave to enter a default judgment, adhered to the prior determination denying such vacatur, and (2) upon, in effect, granting the branch of defendant’s motion seeking leave to reargue its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), adhered to the prior determination denying the motion.

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, plaintiff obtained leave to enter a default judgment against defendant pursuant to an order of the Civil Court (William A. Viscovich, J.) entered December 19, 2008. Defendant then moved pursuant to CPLR 5015 (a) (1) to vacate the order and permit it to defend the action. Two months later, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In support of the [*2]latter motion, defendant alleged, among other things, that plaintiff had failed to serve process upon defendant and, instead, had mistakenly served defendant’s third-party claims administrator. By order entered February 2, 2010, the Civil Court (Rudolph E. Greco, Jr., J.) denied both of defendant’s motions.

Thereafter, defendant moved for 1) leave to reargue or, in the alternative, to renew its prior motion to vacate the December 19, 2008 order and, upon reargument or, in the alternative, renewal, to vacate said order, and 2) leave to reargue its prior motion to dismiss the complaint and, upon reargument, to dismiss the complaint.

By order entered April 7, 2010, the Civil Court (Rudolph E. Greco, Jr., J.), upon, in effect, granting defendant leave to reargue and renew its prior motion to vacate the December 19, 2008 order, adhered to its prior determination denying such vacatur. Additionally, the court, upon, in effect, granting defendant leave to reargue its prior motion to dismiss the complaint, adhered to its prior determination denying the motion.

The Civil Court properly denied the branch of defendant’s motion seeking, upon reargument, to dismiss the complaint. A defendant’s voluntary participation in litigation in which the lack of jurisdiction could be, but was not, raised constitutes a submission to the jurisdiction of the courts (see generally Gager v White, 53 NY2d 475, 488 [1981]; Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In the instant case, defendant submitted to the jurisdiction of the court when, in its initial motion, it sought to vacate the December 19, 2008 order, and permit it to “defend this action on the merits,” rather than seeking to dismiss the complaint for lack of jurisdiction (see Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U]).

The Civil Court also properly denied the branch of defendant’s motion seeking, upon reargument, to vacate the December 19, 2008 order pursuant to CPLR 5015 (a) (1). A movant seeking to vacate a default based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]; Solomon v Ramlall, 18 AD3d 461 [2005]). Defendant failed to demonstrate a meritorious defense as it did not submit adequate proof to raise a question of fact regarding whether the assignor had been acting within the course of her employment when the accident had occurred. The affidavit of defendant’s third-party claims administrator merely alleged in a conclusory manner that the assignor “was injured during the course of her employment and therefore, workers’ compensation was primary for this loss,” without substantiating this assertion with any evidence (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 17, 2013

Legal questions (3)

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

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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 potentially meritorious defense or cause of action was shown; excuse accepted or not reached

Upheld denial of vacatur because the insurer's claims administrator only conclusorily asserted the assignor was injured in the course of employment, failing to show a meritorious defense.

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, 17 (this one included) are in the same category.

Service and jurisdiction over the insurer

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

This decision: Insurer's objection fails without reaching service or contacts: waived, forfeited, or jurisdiction not required

Held the insurer submitted to jurisdiction by first moving to vacate its default and defend on the merits, so its later improper-service (TPA served) motion to dismiss failed.

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, 4 (this one included) are in the same category.

Workers' comp or other insurer primary

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Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: The insurer did not show that workers' compensation may apply; no referral, and the defense fails

Held the workers' compensation defense lacked even potential merit because the administrator's affidavit asserted course of employment conclusorily without substantiating evidence.

Referred to WC BoardWC primary: claim failsWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 10 (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. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 50959(U)) FollowedThe insurer failed to show potential merit in its workers' compensation defense sufficient to warrant Workers' Compensation Board review.

Cited by

American Tr. Ins. Co. v North Shore Family Chiropractic PC (2023 NY Slip Op 50208(U))The insurer's police report did not require referral of its course-of-employment defense to the Workers' Compensation Board.

Similar decisions

Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co. (2016 NY Slip Op 50321(U))The provider failed to establish a reasonable excuse or potentially meritorious opposition when seeking vacatur of a default summary judgment order.
Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U))The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.
Atlantic Radiology Imaging, P.C. v Travelers Home (2014 NY Slip Op 51002(U))The insurer's dismissal motion was improperly converted to summary judgment without adequate notice under CPLR 3211 (c).
Urban Radiology, P.C. v American Tr. Ins. Co. (2009 NY Slip Op 51734(U))The insurer's lost-file excuse and potentially meritorious medical-necessity defense supported vacatur of the default on one claim.