May 28, 2009

J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51089(U))

https://www.beynensonlaw.com/case-law/j-o-dedicated-med-p-c-v-state-farm-mut-auto-ins-co-2009-ny-slip-op51089u/

Court
Appellate Term, Second Department
Decided
May 28, 2009
Citation
2009 NY Slip Op 51089(U) · 23 Misc 3d 144(A)
Posture
Default or vacatur
Outcome
Provider prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Defaults and vacatur
Legal questions
Vacating a default: excuse and defense (see the maps)
Cite as
J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 144(A), 2009 NY Slip Op 51089(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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's assertion of clerical inadvertence did not establish a reasonable excuse for its default in answering. The provider's earlier application for a default judgment preserved its objection to untimeliness despite retaining the late answer beyond CPLR 2101 (f)'s two-day period. Because judgment had already been entered, the insurer should have sought vacatur under CPLR 5015 (a), rather than acceptance or an extension under CPLR 3012 (d). Either remedy required a reasonable excuse and a meritorious defense. Although CPLR 2005 permits consideration of law office failure, counsel provided no detailed, evidentiary explanation for the clerical oversight. The Appellate Term, Second Department, affirmed denial of the insurer's motion and did not reach whether a meritorious defense was shown.

Reported in New York Official Reports at J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51089(U))

[*1]
J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co.
2009 NY Slip Op 51089(U) [23 Misc 3d 144(A)]
Decided on May 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 28, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1514 K C.
J.O. Dedicated Medical, P.C. a/a/o JORGE OLMEDO, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 27, 2008. The order denied defendant’s motion to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer. The Civil Court denied the motion on the ground that defendant had failed to demonstrate both a reasonable excuse for the default as well as a meritorious defense. This appeal by defendant ensued.

Defendant’s contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant’s failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to “submit supporting facts in evidentiary form sufficient to justify the default” (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]). The mere statement in defense counsel’s affirmation in support of the motion that his office failed to timely process the summons and complaint “due to clerical inadvertence,” and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.

Accordingly, the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 2009

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