January 18, 2011

Westchester Med. Ctr. v Allstate Ins. Co. (2011 NY Slip Op 00377)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-allstate-ins-co-2011-ny-slip-op-00377/

Court: Appellate Division, Second Department
Decided: January 18, 2011
Citation: 2011 NY Slip Op 00377 · 80 AD3d 695
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur Discovery and procedure

Cite as

Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 (2d Dept 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 insurer established a reasonable clerical excuse for its brief default and a potentially meritorious defense. An employee's affidavit explained an oversight in forwarding the summons and complaint to counsel. Applying CPLR 5015 (a) (1), the Appellate Division, Second Department, reversed the order insofar as reviewed, vacated the default judgment and compelled acceptance of the insurer's late answer under CPLR 3012 (d). The brief delay, absence of willfulness or prejudice and preference for resolving actions on the merits supported relief. The appeal concerning contempt and subpoena-quashing motions was dismissed because those motions were held for a hearing rather than decided, making that portion nonappealable as of right under CPLR 5701 (a) (2) (v); the hospital's dismissal motion became academic.

Reported in New York Official Reports at Westchester Med. Ctr. v Allstate Ins. Co. (2011 NY Slip Op 00377)

Westchester Med. Ctr. v Allstate Ins. Co.

2011 NY Slip Op 00377 [80 AD3d 695]

January 18, 2011

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 9, 2011

Westchester Medical Center, Respondent,
v
Allstate Insurance Company, Appellant.

—[*1] McDonnell & Adels, PLLC, Garden City, N.Y. (James J. Cleary, Jr., and Jannine Gordineer of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain contracts of insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered December 21, 2009, which denied its motion to vacate a judgment of the same court entered March 12, 2009, which, upon its failure to appear or answer the complaint, was in favor of the plaintiff and against it in the principal sum of $29,103.60, and to compel the plaintiff to accept a late answer pursuant to CPLR 3012 (d), and held in abeyance and referred for a hearing the plaintiff’s motion to hold it in contempt for failure to comply with an information subpoena dated March 30, 2009, and its cross motion to quash the information subpoena.

Ordered that the appeal from so much of the order entered December 21, 2009, as held in abeyance and referred for a hearing the plaintiff’s motion to hold the defendant in contempt for failure to comply with an information subpoena dated March 30, 2009, and the defendant’s cross motion to quash the information subpoena is dismissed; and it is further,

Ordered that the order entered December 21, 2009, is reversed insofar as reviewed, on the facts and in the exercise of discretion, the defendant’s motion to vacate the judgment entered March 12, 2009, and to compel the plaintiff to accept a late answer pursuant to CPLR 3012 (d) is granted, the judgment entered March 12, 2009, is vacated, and the answer annexed to the motion papers is deemed timely served upon the plaintiff; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The order entered December 21, 2009, did not decide the plaintiff’s motion to hold the defendant in contempt for failure to comply with an information subpoena dated March 30, 2009, or the defendant’s cross motion to quash the information subpoena, but instead, held that motion and cross motion in abeyance and referred them for a hearing. Accordingly, no appeal lies as of right from that portion of the order (see CPLR 5701 [a] [2] [v]; Evan S. v Joseph R., 70 AD3d 668 [2010]; Quigley v Coco’s Water CafÉ, Inc., 43 AD3d 1132 [2007]), and we decline to grant leave.

A defendant seeking to vacate a judgment entered on default must demonstrate a [*2]reasonable excuse for its delay in appearing or answering the complaint and a potentially 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]; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677 [2010]). The defendant established through an employee’s affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons and complaint to its attorney, a reasonable excuse for the short period of time following service of the complaint in which it failed either to appear or answer the complaint (see Perez v Travco Ins. Co., 44 AD3d 738 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Furthermore, the defendant demonstrated that it has a potentially meritorious defense to the action. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion to vacate its default and to compel acceptance of its answer in light of the strong public policy that actions be resolved on their merits, the brief delay involved, the defendant’s lack of willfulness, and the absence of prejudice to the plaintiff (see Perez v Travco Ins. Co., 44 AD3d 738 [2007]; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]). Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.

Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, entered December 21, 2009, to dismiss so much of the appeal as held in abeyance and referred for a hearing the respondent’s motion to hold the appellant in contempt for failure to comply with an information subpoena dated March 30, 2009, and the appellant’s cross motion to quash the information subpoena, on the ground that said portion of the order is not appealable as of right. By decision and order on motion of this Court dated September 1, 2010, inter alia, the motion was referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and, upon the argument of the appeal, it is

Ordered that the motion is denied as academic in light of our determination on the appeal. Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.

Cited in this decision

Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co. (2006 NY Slip Op 05939)The insurer justified vacating its default with an employee's affidavit describing a clerical error and a prima facie meritorious defense.
New York & Presbyt. Hosp. v American Home Assur. Co. (2006 NY Slip Op 02510)The insurer established grounds to vacate its default through an excuse tied to a misspelled insured's name and a meritorious coverage defense.

Cited by

A label shows how the later decision treated this one.

Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U)) FollowedThe insurer established a reasonable excuse for default through process-receipt procedures and records showing no record of the lawsuit.
Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. (2019 NY Slip Op 29225)The insurer failed to establish a reasonable excuse for default by citing the absence of a record of receiving process.
New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)The insurer's clerical-oversight affidavit and potentially meritorious defense justified vacating its default judgment.
Renelique v Allstate Ins. Co. (2020 NY Slip Op 50401(U))The insurer failed to establish a reasonable excuse for default by asserting only that it had no record of receiving process.
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.
Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))The insurer failed to establish an excusable default, and the provider's default judgment remained in place.
Modern Art Med., P.C. v MVAIC (2012 NY Slip Op 50395(U))MVAIC's cross motion to open its default and compel acceptance of its late answer was granted, and the provider's default judgment motion was denied.

Similar decisions

Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138)The insurer failed to justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2011 NY Slip Op 02379)The insurer failed to establish grounds under CPLR 5015 (a) to reduce a judgment based on belatedly asserted policy exhaustion.
New York & Presbyt. Hosp. v Countrywide Ins. Co. (2007 NY Slip Op 07675)The insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another.
Allstate Ins. Co. v North Shore Univ. Hosp. (2018 NY Slip Op 05268)The provider's reasonable excuse and potentially meritorious defense warranted vacating its default in the insurer's de novo action.
American Tr. Ins. Co. v Hackensack Surgery Ctr., LLC (2025 NY Slip Op 05787)An order may be resettled to reflect that a dismissal was granted on default when the written order omitted that basis.