October 7, 2008
Hospital for Joint Diseases v Lincoln Gen. Ins. Co. (2008 NY Slip Op 07619)
https://www.beynensonlaw.com/case-law/hospital-for-joint-diseases-v-lincoln-gen-ins-co-2008-ny-slip-op-07619/
- Decided
- October 7, 2008
- Citation
- 2008 NY Slip Op 07619 · 55 AD3d 543
- Posture
- Default or vacatur
- Outcome
- Insurer prevailed
- Later treatment
- Contrasted (cf., but see) in 2 later decisions (see Cited by)
- Issues
- Defaults and vacatur
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 Hospital for Joint Diseases v Lincoln Gen. Ins. Co. (2008 NY Slip Op 07619)
| Hospital for Joint Diseases v Lincoln Gen. Ins. Co. |
| 2008 NY Slip Op 07619 [55 AD3d 543] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Hospital for Joint Diseases, as Assignee of Maritza DeThomas,
Appellant, v Lincoln General Insurance Company, Respondent. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.
Nancy S. Linden (Bruno, Gerbino & Soriano, LLP, Melville, N.Y. [Charles W. Benton], of counsel), for respondent.
In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 25, 2008, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 10, 2007, in its favor and against the defendant in the principal sum of $51,585.52, upon the defendant’s failure to appear or answer the complaint.
Ordered that the order is affirmed, with costs.
Service upon the defendant was effectuated through delivery of the summons and complaint upon the Assistant Deputy Superintendent and Chief of Insurance pursuant to Insurance Law § 1212 (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]). Although the defendant’s motion was made pursuant to CPLR 5015 (a) (1), under the circumstances of this case, it may be treated as a motion made under CPLR 317 as well (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]).
The defendant met its burden of showing that it did not receive actual notice of the summons [*2]in time to defend with an affidavit of its claims manager detailing its standard office practice concerning the handling of summonses and complaints, and asserting that the summons and complaint in this action was not received until after the entry of judgment (see Marine v Federal Ins. Co., 293 AD2d 721 [2002]). The plaintiff’s proof was insufficient to rebut that showing (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Moreover, the defendant established that it may have a meritorious defense to the action (see Taieb v Hilton Hotels Corp., 60 NY2d 725, 727 [1983]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]; Presbyterian Hosp. in City of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]). Accordingly, the defendant’s motion to vacate the clerk’s judgment entered upon its failure to appear or answer was properly granted. Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ., concur.
Legal questions (2)
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.
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
Affirmed vacatur under CPLR 317 because the insurer, served via the Superintendent, showed through its claims manager's office-practice affidavit that it did not receive the summons until after judgment, and showed a potentially meritorious defense.
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.
Was the insurer validly served with process, and does the court have personal jurisdiction over it?
This decision: Insurer validly served and subject to the court's jurisdiction, or service defect cured/excused (rules on the question, but another ground decided the case)
Held service was effectuated by delivery to the Assistant Deputy Superintendent under Insurance Law § 1212, so the motion could be treated under CPLR 317.
Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.
Cited in this decision
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 04260)The insurer obtained default vacatur under CPLR 317 by showing untimely actual notice of the summons and meritorious defenses.
- Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413)The hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
Cited by
A label shows how the later decision treated this one.
- Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138) Contrasted (cf., but see)The insurer failed to justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense.
- Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596) Contrasted (cf., but see)The insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service.
- Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U))The insurer established lack of actual notice in time to defend and a meritorious policy-cancellation defense, warranting vacatur under CPLR 317.
Similar decisions
- 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.
- New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa. (2005 NY Slip Op 01691)The insurer failed to establish a meritorious defense required to vacate the provider's default judgment.
- Nyack Hosp. v Allstate Ins. Co. (2006 NY Slip Op 52233(U))The insurer lacked a meritorious defense to vacate its default because a completed hospital facility form replaced the requested no-fault application.
- New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co. (2006 NY Slip Op 02344)The insurer's motion for default vacatur and a late answer was granted based on a reasonable excuse and a meritorious defense.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2006 NY Slip Op 08214)An insurer waives claim-form and assignment defenses by failing to timely object to form adequacy or seek assignment verification.