March 10, 2010

Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U))

https://www.beynensonlaw.com/case-law/nursing-personnel-homecare-v-new-york-cent-mut-fire-ins-co-2010-ny-slip-op50450u/

Court
Appellate Term, Second Department
Decided
March 10, 2010
Citation
2010 NY Slip Op 50450(U) · 26 Misc 3d 145(A)
Posture
Default or vacatur
Outcome
Insurer prevailed
Issues
Defaults and vacatur Policy issues
Legal questions
Vacating a default: excuse and defense · Service and jurisdiction over the insurer (see the maps)
Cite as
Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 145(A), 2010 NY Slip Op 50450(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 lack of actual notice in time to defend and a meritorious policy-cancellation defense, warranting vacatur under CPLR 317. The provider served the Superintendent of Insurance under Insurance Law § 1212. The insurer's litigation examiner, with personal knowledge of mail-handling and claim-file procedures, stated that the insurer never received the summons, complaint or default motion. This evidence exceeded a mere denial of receipt. The examiner also stated that the assignor had canceled the policy before the accident and had not obtained another policy with the insurer. The Appellate Term, Second Department, reversed the order denying vacatur and granted the insurer's motion, finding that the Civil Court had improvidently exercised its discretion.

Reported in New York Official Reports at Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U))

[*1]
Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co.
2010 NY Slip Op 50450(U) [26 Misc 3d 145(A)]
Decided on March 10, 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As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.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 March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-290 K C.
Nursing Personnel Homecare a/a/o Evelyn White, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 18, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is reversed without costs and defendant’s motion to vacate the default judgment is granted.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment.

In order to vacate a default judgment pursuant to CPLR 5015 (a) (1), a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). A motion to vacate a default judgment is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]).

Plaintiff’s affidavit of service established that plaintiff had effectuated service upon defendant through the delivery of the summons and complaint to the Superintendent of Insurance (see Insurance Law § 1212; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; see also CPLR 311 [a] [1]). In support of defendant’s motion to vacate the default judgment, there was more than a “mere denial” of [*2]receipt of the summons and complaint (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). Defendant submitted an affidavit from one of its no-fault litigation examiners, who had personal knowledge regarding defendant’s practices and procedures in retrieving, opening and filing its mail and in maintaining its files on existing claims. In said affidavit, the no-fault litigation examiner stated that defendant had never received the summons, the complaint or the motion for a default judgment (cf. Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]). Accordingly, pursuant to CPLR 317, defendant met its burden of showing that it did not receive actual notice of the summons in time to defend the action.
Furthermore, defendant established the existence of a meritorious defense to the action. Defendant submitted an affidavit from its litigation examiner in which he stated that the assignor had cancelled her insurance policy with defendant prior to the date of the accident and had not subsequently taken out another insurance policy with defendant.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in denying defendant’s motion to vacate the default judgment. Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is granted.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

Similar decisions