October 27, 2006
Nyack Hosp. v Allstate Ins. Co. (2006 NY Slip Op 52233(U))
https://www.beynensonlaw.com/case-law/nyack-hosp-v-allstate-ins-co-2006-ny-slip-op-52233u/
- Decided
- October 27, 2006
- Citation
- 2006 NY Slip Op 52233(U) · 13 Misc 3d 139(A)
- Posture
- Default or vacatur
- Outcome
- Provider prevailed
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 Nyack Hosp. v Allstate Ins. Co. (2006 NY Slip Op 52233(U))
| Nyack Hosp. v Allstate Ins. Co. |
| 2006 NY Slip Op 52233(U) [13 Misc 3d 139(A)] |
| Decided on October 27, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-134 N C.
against
Allstate Insurance Company, Respondent.
Appeal by plaintiff from an order of the District Court of Nassau County, First District (Margaret C. Reilly, J.), dated October 17, 2005. The order granted defendant’s motion to vacate a default judgment.
Order reversed without costs and defendant’s motion to vacate the default judgment denied.
In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A motion to vacate 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]). Despite the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment rendered against it. [*2]
Plaintiff adequately established that it effectuated service upon the Superintendent of Insurance pursuant to Insurance Law § 1212. Defendant’s mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by plaintiff’s affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]).
Although defendant’s motion to vacate the default judgment was made pursuant to CPLR 5015 (a) (1), in the instant case, we may treat defendant’s motion as having been made under CPLR 317 as well. A defendant seeking relief under CPLR 317 need not demonstrate a reasonable excuse for its default, as it must under CPLR 5015 (a) (1), but need only show that it did not personally receive notice of the summons in time to defend and that it has a meritorious defense. Defendant herein met its burden of showing that it did not receive actual notice of the commencement of the action in time to defend (see e.g. Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). Nonetheless, defendant failed to proffer a meritorious defense. Defendant admitted receipt of a Hospital Facility Form, and stated that after receipt of that form, it twice requested an Application for Motor Vehicle No-Fault Benefits, which was never submitted to it. Accordingly, it denied the claim, based upon the eligible injured party’s failure to file “a completed and signed application for no-fault benefits.” Defendant’s argument that it was entitled to delay payment of benefits pending its receipt of the Application for Motor Vehicle No-Fault Benefits has already been rejected by the Appellate Division, Second Department, in Nyack Hosp. v Encompass Ins. Co. (23 AD3d 535 [2005]) wherein the court pointed out that 11 NYCRR 65.15 (d) (6) (now 11 NYCRR 65-3.5 [g]) states that “[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (NYS Form N-F 4), an insurer shall accept a completed hospital facility form (NYS Form N-F 5) . . . submitted by a provider of health services with respect to the claim of such provider.” We note that a defendant may not avoid preclusion where its denial “involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, in view of the foregoing, we find that the court below improvidently exercised its discretion in vacating the default judgment, and that defendant’s motion should have been denied.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 27, 2006
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: Relief denied because no potentially meritorious defense or cause of action was shown; excuse accepted or not reached
Held that although the insurer showed under CPLR 317 it lacked actual notice in time to defend, it had no meritorious defense because its denial for a missing application form was meritless where a hospital facility form sufficed.
Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 17 (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 the provider established service on the Superintendent of Insurance under Insurance Law § 1212, and the insurer's mere denial of receipt did not rebut the presumption of proper service.
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
A label shows how this decision treated the case it cites.
- 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.
- Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962) FollowedAn insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
Cited by
- Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U))The provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
- Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U))An insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
- Meridian Psychological Servs., PC v Government Empls. Ins. Co. (2014 NY Slip Op 24177)An insurer cannot continue to delay payment after receiving a completed but unsigned NF-2 without seeking further verification.
Similar decisions
- St. Barnabas Hosp. v Allstate Ins. Co. (2009 NY Slip Op 07824)The insurer failed to establish a meritorious defense because its timely denial misstated the claim amount and gave an invalid reason.
- 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 Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
- 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.
- Allstate Ins. Co. v North Shore Univ. Hosp. (2018 NY Slip Op 05268)The provider's reasonable excuse and potentially meritorious defense warranted vacating its default in the insurer's de novo action.