October 5, 2010

Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51772(U))

https://www.beynensonlaw.com/case-law/friendly-physician-p-c-v-geico-ins-co-2010-ny-slip-op-51772u/

Court: Appellate Term, Second Department
Decided: October 5, 2010
Citation: 2010 NY Slip Op 51772(U) · 29 Misc 3d 129(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur Medical necessity
Legal questions: Vacating a default: excuse and defense · Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Friendly Physician, P.C. v GEICO Ins. Co., 29 Misc 3d 129(A), 2010 NY Slip Op 51772(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 an excusable law office default and a meritorious medical necessity defense warranting vacatur. The Appellate Term, Second Department, reversed denial of vacatur, granted the insurer's motion under CPLR 5015 (a) (1), and denied the provider summary judgment. The insurer's opposition had been rejected when filed almost a month after the stipulated deadline. Its attorneys' affirmations supplied the detailed evidentiary explanation needed to accept law office failure under CPLR 2005. Its claims employee established timely denials based on a verified peer review and affirmed IME reports finding the services unnecessary, raising a triable issue. Relief from an order entered on default must be sought under CPLR 5015, rather than through renewal or reargument as the Civil Court had directed.

Reported in New York Official Reports at Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51772(U))

[*1]

Friendly Physician, P.C. v GEICO Ins. Co.

2010 NY Slip Op 51772(U) [29 Misc 3d 129(A)]

Decided on October 5, 2010

Appellate Term, Second Department

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

As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.

Decided on October 5, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1441 K C.

Friendly Physician, P.C. as Assignee of PANZIE SMITH, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 19, 2007. The order denied defendant’s motion to vacate a prior order of the same court (Robin S. Garson, J.), dated October 15, 2007, which had granted on default plaintiff’s motion for summary judgment.

ORDERED that the order entered November 19, 2007 is reversed without costs, defendant’s motion to vacate the October 15, 2007 order is granted, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost a month after their stipulated due date, the Civil Court rejected defendant’s papers and, by order dated October 15, 2007 (Robin S. Garson, J.), granted plaintiff’s motion on default. In November 2007, defendant moved to vacate the October 15, 2007 order pursuant to CPLR 5015 (a) (1). By order entered November 19, 2007 (Peter Paul Sweeney, J.), the Civil Court denied defendant’s motion without prejudice, stating that “[d]efendant is granted leave to submit a motion to reargue or renew before Judge Garson, who initially granted the judgment in dispute.” The instant appeal by defendant ensued.

It is well settled that a party seeking to vacate an order granting summary judgment on default must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an excuse (see CPLR 2005), if the [*2]facts submitted in support thereof are in evidentiary form sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). The affirmations of the attorneys employed by the law firm representing defendant satisfied these criteria.

Defendant also demonstrated a meritorious defense to the action. The affidavit of an employee of defendant’s claims department showed that defendant had timely mailed the denial of claim forms in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The employee’s affidavit also established that the claims were denied based upon the annexed verified peer review report and affirmed independent medical examination reports, which concluded that there was a lack of medical necessity for the services rendered. Consequently, defendant set forth a triable issue of fact sufficient to defeat plaintiff’s motion for summary judgment.

We note that, contrary to the Civil Court’s direction, relief from an order granted upon default should be sought by means of a motion pursuant to CPLR 5015, not by a motion to renew or reargue (see e.g. Raciti v Sands Point Nursing Home, 54 AD3d 1014 [2008]).

Accordingly, the order is reversed, defendant’s motion to vacate the October 15, 2007 order is granted and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010

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: Excuse (or lack of actual notice under CPLR 317) and potentially meritorious defense or claim shown; default vacated or late answer allowed

Held the insurer's late opposition excused because its attorneys' affirmations gave a detailed evidentiary account of law office failure, and its claims employee's affidavit showed timely mailed denials based on peer review and IMEs, a meritorious defense.

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

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the claims employee's affidavit showed the denials were timely mailed under the insurer's standard office practices, supporting a meritorious defense for vacating the default.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)

Held that denials based on an annexed verified peer review and affirmed IME reports finding no medical necessity showed a meritorious defense and raised a triable issue defeating the provider's summary judgment motion.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Hospital for Joint Diseases v ELRAC, Inc. (2004 NY Slip Op 07140) FollowedAn unanswered verification demand tolls the 30-day payment-or-denial period under 11 NYCRR 65.15 (g) (1) (i).
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Cited by

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.

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.
Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))The provider failed to establish a reasonable excuse for defaulting on the insurer's summary judgment motion.
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.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.
Himalayans Acupuncture, P.C. v GEICO Cas. Co. (2022 NY Slip Op 50904(U))The insurer's detailed law-office-failure explanation and motion two days after entry of the default order supported vacatur.