July 31, 2009
Urban Radiology, P.C. v American Tr. Ins. Co. (2009 NY Slip Op 51734(U))
https://www.beynensonlaw.com/case-law/urban-radiology-p-c-v-american-tr-ins-co-2009-ny-slip-op51734u/
- Decided
- July 31, 2009
- Citation
- 2009 NY Slip Op 51734(U) · 24 Misc 3d 142(A)
- Posture
- Default or vacatur
- Outcome
- Split result
- Legal questions
- Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Urban Radiology, P.C. v American Tr. Ins. Co. (2009 NY Slip Op 51734(U))
| Urban Radiology, P.C. v American Tr. Ins. Co. |
| 2009 NY Slip Op 51734(U) [24 Misc 3d 142(A)] |
| Decided on July 31, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1576 K C.
against
American Transit Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered December 14, 2007. The order denied defendant’s motion to vacate a default judgment and compel plaintiff to accept its late answer.
Order modified by providing that defendant’s motion is granted to the extent of vacating the default judgment with respect to plaintiff’s $2,322.73 claim for services rendered to assignor Patrick Seraphin and compelling plaintiff to accept defendant’s late answer with respect to said claim; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits, defendant moved to vacate a default judgment and to compel plaintiff to accept its late answer. The Civil Court denied defendant’s motion, and the instant appeal by defendant ensued.
It is well settled that in order to vacate a default judgment, the defendant must demonstrate both a reasonable excuse for its delay in appearing and answering the complaint as well as a meritorious defense to the action (see CLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). In the case at bar, defendant’s no-fault supervisor, who was also the claims representative who handled the instant claims, submitted an affidavit in which he stated that defendant had lost the file containing the summons and complaint and had not found out about the default until June 25, 2007. The record also indicates that defendant’s attorney initiated the instant motion to vacate the default judgment promptly in July 2007. On these facts, defendant’s failure to answer the complaint was excusable (see e.g. Perez v Travco Ins. Co., 44 AD3d 738 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d at 743; Dodge v Commander, 18 AD3d 943, 946 [2005]; Triangle Transp. Inc. v Markel Ins. Co., 18 [*2]AD3d 229 [2005]; Allstate Ins. Co. v Progressive Cas. Ins. Co., 20 Misc 3d 139[A], 2008 NY Slip Op 51567[U] [App Term, 2d & 11th Jud Dists 2008]).
A review of the record indicates that defendant demonstrated a potentially meritorious defense to plaintiff’s $2,322.73 claim for the services it rendered to assignor Patrick Seraphin. The affidavits of defendant’s claims representative and mail room supervisor show that defendant timely denied said claim within the 30-day statutory time period as required by Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (see also Insurance Law § 5106 [a]), based upon, inter alia, a peer review report concluding that there was no medical necessity for the services rendered to Seraphin. In regard to the claims for the services plaintiff rendered to assignor Guy Louis, defendant argued that it did not have to pay or deny these claims because plaintiff had failed to respond to its verification requests and, thus, the 30-day statutory time period within which it had to respond to the claims had been tolled. However, defendant failed to demonstrate merit to said defense since the affidavits did not show that defendant’s requests for additional verification were timely (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]) and, consequently, the action with respect to said claims was not premature.
In view of the fact that defendant has shown a reasonable excuse for its default and a meritorious defense as to the claim for services rendered to assignor Patrick Seraphin, we find that the Civil Court improvidently exercised its discretion in denying that part of defendant’s motion which sought to vacate the default judgment and compel plaintiff to accept a late answer with respect to plaintiff’s $2,322.73 claim (see New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511, 512 [2006]).
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 31, 2009
Legal questions
A question 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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: Different mailing results for different documents or claims in one decision (rules on the question, but another ground decided the case)
On a motion to vacate a default, held the claims representative's and mail room supervisor's affidavits showed one claim was timely denied, a meritorious defense, but did not show the verification requests on the other claims were timely.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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 Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co. (2006 NY Slip Op 05601) FollowedThe insurers established a reasonable excuse for their default and potentially meritorious verification and policy-exhaustion defenses.
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 First Am. Ins. (2013 NY Slip Op 51031(U))The insurer submitted to personal jurisdiction by seeking default vacatur and leave to defend on the merits without a jurisdictional objection.
- American Tr. Ins. Co. v Bruno Med. Supply, Inc. (2026 NY Slip Op 01332)The provider's contradictory and conclusory allegations of law office failure did not reasonably excuse its default in answering.
- Edison Med. Servs., P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 50193(U))The insurer failed to provide a reasonable excuse for its late answer and was denied vacatur of the default judgment.
- 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.