February 23, 2015

A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))

https://www.beynensonlaw.com/case-law/a-b-med-pllc-v-cna-ins-co-2015-ny-slip-op-50199u/

Court: Appellate Term, Second Department
Decided: February 23, 2015
Citation: 2015 NY Slip Op 50199(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Defaults and vacatur

Cite as

A.B. Med., PLLC v Cna Ins. Co., 2015 NY Slip Op 50199(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 provider failed to show a reasonable excuse for submitting late opposition after stipulating to a summary judgment briefing schedule. Civil Court granted the insurer's summary judgment motion on default after declining to consider the untimely opposition. Seeking vacatur under CPLR 5015 (a) (1), the provider's attorney attributed the delay to a heavy workload. The Appellate Term, Second Department, deemed that explanation mere neglect rather than an excusable default and noted the absence of any explanation for waiting almost 10 months to seek vacatur. It affirmed the order, insofar as appealed from, denying the provider's motion and reached no other issue.

Reported in New York Official Reports at A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

A.B. Medical, PLLC as Assignee of DERRIK LAWSON, Appellant, –
against
CNA Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 29, 2013. The order, insofar as appealed from, denied plaintiff’s motion to vacate a prior order of the same court entered October 24, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 24, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, noting that the parties had entered into a stipulation, which set a schedule for serving opposition and reply papers, and declining to consider plaintiff’s late opposition to the motion. Almost 10 months later, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the October 24, 2011 default order. Defendant opposed plaintiff’s motion, and cross-moved for costs and sanctions. Plaintiff appeals from so much of an order of the Civil Court entered April 29, 2013 as denied its motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, pursuant to the parties’ stipulation. In support of plaintiff’s motion to vacate the default order, plaintiff’s attorney alleged that her late submission of an affirmation in opposition to defendant’s motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff’s attorney offered no reason for waiting almost 10 months to move to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: February 23, 2015

Cited by

A label shows how the later decision treated this one.

Brand Med. Supply, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50961(U)) FollowedThe provider failed to establish a reasonable excuse for late opposition papers or explain its 10-month delay in seeking vacatur.
Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51449(U)) FollowedThe provider's attorney's heavy workload did not reasonably excuse the failure to submit timely opposition to summary judgment.

Similar decisions

Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))The provider failed to establish a reasonable excuse for defaulting on the insurer's summary judgment motion.
Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U))The insurer established a reasonable excuse for default through process-receipt procedures and records showing no record of the lawsuit.
Healthworx Med., P.C. v Auto One Ins. Co. (2017 NY Slip Op 50605(U))The insurer's law-office-failure claim did not explain its failure to submit timely written opposition to the provider's summary judgment motion.
SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))The provider failed to establish a reasonable excuse or a meritorious claim warranting vacatur of its dismissal for failure to proceed at trial.
A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50243(U))The insurer failed to establish a reasonable excuse for its default or a meritorious defense to the providers' claims.