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May 30, 2006

New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 04260)

https://www.beynensonlaw.com/case-law/new-york-presbyt-hosp-v-allstate-ins-co-2006-ny-slip-op-04260/

Court
Appellate Division, Second Department
Decided
May 30, 2006
Citation
2006 NY Slip Op 04260 · 29 AD3d 968
Posture
Default or vacatur
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Defaults and vacatur
Legal questions
Vacating a default: excuse and defense · Service and jurisdiction over the insurer (see the maps)
Cite as
New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 (2d Dept 2006)

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 obtained default vacatur under CPLR 317 by showing untimely actual notice of the summons and meritorious defenses. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, vacating the providers' default judgment and extending the insurer's time to answer. Service had been made on the Deputy Secretary of Insurance under Insurance Law § 1212. Although the motion invoked CPLR 5015 (a) (1), it could also be treated under CPLR 317. That provision did not require a reasonable excuse where service was other than personal delivery or delivery to a CPLR 318 agent. The insurer met the notice and merits requirements, with 11 NYCRR 65-3.8 cited concerning its defenses.

Reported in New York Official Reports at New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 04260)

New York & Presbyt. Hosp. v Allstate Ins. Co.
2006 NY Slip Op 04260 [29 AD3d 968]
May 30, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 19, 2006
New York and Presbyterian Hospital, as Assignee of Albert Klau, et al., Appellants,
v
Allstate Insurance Company, Respondent.

—[*1]

In an action to recover no-fault insurance benefits under certain insurance contracts, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated July 21, 2005, as granted the defendant’s motion to vacate a judgment of the same court entered December 8, 2004, which is in favor of the plaintiffs and against it in the principal sum of $43,425.51, upon the defendant’s failure to appear or answer, and to extend its time to answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

Service upon the defendant was effectuated through delivery of the summons and complaint upon the Deputy Secretary of Insurance pursuant to Insurance Law § 1212. Although the defendant’s motion to vacate the default judgment 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]). A defendant served with a summons other than by personal delivery or to an agent designated under CPLR 318 may obtain relief pursuant to CPLR 317 upon a showing that it did not receive notice of the summons in time to defend, and has a meritorious defense (see Marine v Federal Ins. Co., 293 AD2d 721 [2002]). Unlike [*2]a motion to vacate under CPLR 5015 (a) (1), it is unnecessary for a defendant seeking relief under CPLR 317 to demonstrate a reasonable excuse for its default (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., supra at 141; Marinoff v Natty Realty Corp., 17 AD3d 412, 413 [2005]; Rifelli v Fireside Homes Corp., 152 AD2d 629, 631 [1989]; Simon & Schuster v Howe Plastics & Chems. Co., 105 AD2d 604, 605 [1984]). The defendant met its burden of showing that it did not receive actual notice of the summons in time to defend (see Marine v Federal Ins. Co., supra; cf. Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; Board of Mgrs. of Landings at Patchogue Condominium v 263 Riv. Ave. Corp., 243 AD2d 668 [1997]; Fleetwood Park Corp. v Jerrick Waterproofing Co., 203 AD2d 238, 239 [1994]; Anchor Sav. Bank v Alpha Developers, 143 AD2d 711, 713-714 [1988]) and that its defenses are meritorious (see 11 NYCRR 65-3.8; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479 [1996]). Accordingly, the Supreme Court providently exercised its discretion in vacating the default judgment and extending the defendant’s time to answer. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, 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.

Vacating a default: excuse and defense

Open the full map

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 and extension of time to answer under CPLR 317 because the insurer served via the Superintendent showed it did not receive actual notice in time to defend and had meritorious defenses, needing no excuse.

  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 127
  • Trial courtsTrial 9
2022, Appellate Division: 1 decision (1 No reasonable excuse)2019, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2018, Appellate Division: 1 decision (1 Default excused)2017, Appellate Division: 1 decision (1 No meritorious defense)2014, Appellate Division: 1 decision (1 Default excused)2012, Appellate Division: 1 decision (1 Default excused)2011, Appellate Division: 1 decision (1 Default excused)2010, Appellate Division: 1 decision (1 Neither shown)2009, Appellate Division: 3 decisions (2 Default excused, 1 No meritorious defense)2008, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2007, Appellate Division: 3 decisions (3 Default excused)2006, Appellate Division: 7 decisions (7 Default excused)2005, Appellate Division: 3 decisions (1 Default excused, 1 No meritorious defense, 1 Neither shown)2004, Appellate Division: 4 decisions (2 Default excused, 1 No reasonable excuse, 1 Neither shown)2003, Appellate Division: 1 decision (1 No reasonable excuse)2026, Appellate Division: 1 decision (1 No reasonable excuse)2015, Appellate Division: 1 decision (1 Neither shown)2023, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2022, Appellate Term: 4 decisions (3 Default excused, 1 No reasonable excuse)2021, Appellate Term: 6 decisions (3 Default excused, 2 No reasonable excuse, 1 Neither shown)2020, Appellate Term: 10 decisions (2 Default excused, 7 No reasonable excuse, 1 Hearing or remittal)2019, Appellate Term: 18 decisions (5 Default excused, 11 No reasonable excuse, 2 No meritorious defense)2018, Appellate Term: 4 decisions (1 Default excused, 1 No reasonable excuse, 2 Neither shown)2017, Appellate Term: 14 decisions (5 Default excused, 6 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2016, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 Neither shown)2015, Appellate Term: 3 decisions (1 No reasonable excuse, 2 Neither shown)2014, Appellate Term: 2 decisions (1 No reasonable excuse, 1 No meritorious defense)2013, Appellate Term: 1 decision (1 No meritorious defense)2012, Appellate Term: 8 decisions (2 Default excused, 5 No reasonable excuse, 1 Neither shown)2011, Appellate Term: 5 decisions (1 Default excused, 2 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2010, Appellate Term: 12 decisions (4 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 3 Neither shown)2009, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 No meritorious defense)2008, Appellate Term: 7 decisions (1 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2007, Appellate Term: 1 decision (1 No reasonable excuse)2006, Appellate Term: 5 decisions (3 Default excused, 1 No meritorious defense, 1 Neither shown)2005, Appellate Term: 2 decisions (2 Default excused)2004, Appellate Term: 4 decisions (1 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2024, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2025, Appellate Term: 3 decisions (3 Default excused)2026, Appellate Term: 3 decisions (3 No reasonable excuse)2003, Appellate Term: 1 decision (1 Neither shown)2023, Trial courts: 1 decision (1 No reasonable excuse)2011, Trial courts: 1 decision (1 No reasonable excuse)2009, Trial courts: 1 decision (1 Default excused)2007, Trial courts: 1 decision (1 Default excused)2004, Trial courts: 1 decision (1 No meritorious defense)2026, Trial courts: 1 decision (1 Default excused)2006, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2024, Trial courts: 1 decision (1 Default excused)This decision
20052010201520202025
Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decisionCites it or cited by itCited or followed

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.

Service and jurisdiction over the insurer

Open the full map

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 Deputy Secretary of Insurance under Insurance Law § 1212, which is not personal delivery, so CPLR 317 applied.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 108
  • Trial courtsTrial 15
2013, Appellate Division: 1 decision (1 Objection waived/not required)2010, Appellate Division: 1 decision (1 Jurisdiction upheld)2008, Appellate Division: 2 decisions (2 Jurisdiction upheld)2006, Appellate Division: 1 decision (1 Jurisdiction upheld)2003, Appellate Division: 1 decision (1 Jurisdiction upheld)2022, Appellate Term: 7 decisions (1 Jurisdiction upheld, 5 Service defective, 1 No jurisdiction over insurer)2021, Appellate Term: 4 decisions (2 Service defective, 1 No jurisdiction over insurer, 1 Hearing or discovery needed)2020, Appellate Term: 8 decisions (2 Jurisdiction upheld, 4 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2019, Appellate Term: 53 decisions (4 Jurisdiction upheld, 6 Service defective, 42 No jurisdiction over insurer, 1 Objection waived/not required)2018, Appellate Term: 1 decision (1 No jurisdiction over insurer)2017, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 Service defective)2016, Appellate Term: 1 decision (1 Jurisdiction upheld)2015, Appellate Term: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2014, Appellate Term: 4 decisions (1 Jurisdiction upheld, 3 No jurisdiction over insurer)2013, Appellate Term: 4 decisions (1 Jurisdiction upheld, 1 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2011, Appellate Term: 3 decisions (3 Service defective)2010, Appellate Term: 5 decisions (2 Jurisdiction upheld, 3 No jurisdiction over insurer)2009, Appellate Term: 2 decisions (2 Jurisdiction upheld)2007, Appellate Term: 2 decisions (2 Service defective)2006, Appellate Term: 1 decision (1 Jurisdiction upheld)2004, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 No jurisdiction over insurer)2023, Appellate Term: 1 decision (1 Jurisdiction upheld)2025, Appellate Term: 2 decisions (2 Hearing or discovery needed)2026, Appellate Term: 2 decisions (2 Jurisdiction upheld)2005, Appellate Term: 1 decision (1 Service defective)2024, Appellate Term: 1 decision (1 Jurisdiction upheld)2023, Trial courts: 1 decision (1 Jurisdiction upheld)2021, Trial courts: 1 decision (1 Service defective)2012, Trial courts: 1 decision (1 Jurisdiction upheld)2009, Trial courts: 1 decision (1 Jurisdiction upheld)2008, Trial courts: 2 decisions (2 Service defective)2005, Trial courts: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2004, Trial courts: 1 decision (1 Jurisdiction upheld)2003, Trial courts: 1 decision (1 Service defective)2026, Trial courts: 4 decisions (1 Jurisdiction upheld, 2 Service defective, 1 No jurisdiction over insurer)2025, Trial courts: 1 decision (1 Service defective)This decision
20052010201520202025
Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followed

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

  • 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.

  • Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596) FollowedThe insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service.
  • 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.
  • Hospital for Joint Diseases v Lincoln Gen. Ins. Co. (2008 NY Slip Op 07619)The insurer obtained vacatur of its default by showing that it lacked actual notice in time to defend and might have a meritorious defense.
  • Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138)The insurer failed to justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense.
  • Westchester Med. Ctr. v AIU Ins. Co. (2007 NY Slip Op 04285)The insurer's motion to vacate its default judgment under CPLR 317 was granted, and the hospital's contempt motion was denied.
  • 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 & Presbyt. Hosp. v Auto One Ins. Co. (2006 NY Slip Op 02509)The insurer showed a reasonable excuse for its brief answering delay and potentially meritorious defenses, warranting default vacatur.
  • New York & Presbyt. Hosp. v American Home Assur. Co. (2006 NY Slip Op 02510)The insurer established grounds to vacate its default through an excuse tied to a misspelled insured's name and a meritorious coverage defense.
  • 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.
  • 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 & 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.
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