July 25, 2011

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U))

https://www.beynensonlaw.com/case-law/citywide-social-work-psychological-svcs-p-l-l-c-v-allstate-ins-co-2011-nyslip-op-51407u/

Court: Appellate Term, Second Department
Decided: July 25, 2011
Citation: 2011 NY Slip Op 51407(U) · 32 Misc 3d 132(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co., 32 Misc 3d 132(A), 2011 NY Slip Op 51407(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 action was dismissed as abandoned because it sought a default judgment after one year without a reasonable excuse. The insurer failed to timely appear and answer, but the provider waited nearly three years after commencing the action to seek a default judgment. Under CPLR 3215 (c) and CCA 1402, failure to commence default proceedings within one year requires dismissal absent sufficient cause; avoiding dismissal requires a reasonable excuse and a meritorious claim. The provider admitted its delay and offered no reasonable excuse. The Civil Court had no obligation to give advance notice of dismissal on its own initiative. The Appellate Term, Second Department, affirmed denial of the default-judgment motion and dismissal of the complaint.

Reported in New York Official Reports at Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U))

[*1]

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co.

2011 NY Slip Op 51407(U) [32 Misc 3d 132(A)]

Decided on July 25, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2010-334 K C.

Citywide Social Work and Psychological Svcs, P.L.L.C. as Assignee of COUSINS LEOPAUL, Appellant,
against
Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 8, 2009. The order denied the branch of plaintiff’s motion seeking leave to enter a default judgment and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c) is treated as an application for leave to appeal from that portion of the order, and leave to appeal
is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is affirmed, without costs.

In February 2006, plaintiff commenced this action to recover assigned first-party no-fault benefits in the sum of $1,181.63. Defendant failed to timely appear and answer. In January 2009, plaintiff moved for, among other things, leave to enter a default judgment. By order entered July 8, 2009, the Civil Court denied that branch of plaintiff’s motion and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

When a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed (CPLR 3215 [c]; CCA 1402). If the plaintiff demonstrates a reasonable excuse for the delay in timely moving for leave to enter a default judgment and a meritorious cause of action, the complaint will not be dismissed as abandoned (see County of Nassau v Chmela, 45 AD3d 722 [2007]).

In this case, plaintiff admittedly failed to move for leave to enter a default judgment within one year of the default and did not proffer any reasonable excuse for its delay. Further, contrary to plaintiff’s contention, the Civil Court was under no
obligation to notify plaintiff that it intended to “dismiss the complaint as abandoned . . . upon its own initiative” (CPLR 3215 [c]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 25, 2011

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