April 28, 2006
A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co. (2006 NY Slip Op 50810(U))
https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-specialty-natl-ins-co-2006-ny-slip-op-50810u/
- Decided
- April 28, 2006
- Citation
- 2006 NY Slip Op 50810(U) · 11 Misc 3d 144(A)
- Posture
- Default or vacatur
- Outcome
- Insurer 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 A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co. (2006 NY Slip Op 50810(U))
| A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co. |
| 2006 NY Slip Op 50810(U) [11 Misc 3d 144(A)] |
| Decided on April 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2004-1440 K C.
against
Specialty National Insurance Company, Appellant.
Consolidated appeal from orders of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered on July 19, 2004 and December 23, 2004. The order entered July 19, 2004 denied defendant’s motion for renewal of plaintiffs’ motion to enter a default judgment and defendant’s cross motion for summary judgment seeking, in effect, to open the default and to compel plaintiffs to accept defendant’s answer. The order entered December 23, 2004, insofar as appealed from, upon [*2]
granting defendant’s motion for reargument, adhered to its prior determination in the order entered July 19, 2004.
Appeal from order entered July 19, 2004 dismissed as superseded.
Order entered December 23, 2004 modified by providing that, upon reargument, so much of defendant’s prior motion as sought renewal and, upon renewal, vacatur of the portion of the order entered February 6, 2004 which had granted plaintiffs’ underlying motion to enter a default judgment and denied defendants’ cross motion is granted, plaintiffs’ underlying motion to enter a default judgment denied, and defendant’s cross motion granted to the extent of permitting defendant to file and serve its answer within 30 days of the date of the order entered hereon; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits in the sum of $23,022.23, plaintiffs initially moved for an order directing entry of a default judgment upon defendant’s failure to appear and answer. In order to establish entitlement to a default judgment, plaintiffs were required to proffer proof that they submitted the claims to defendant, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co. 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Plaintiffs failed to establish the submission of the claim forms to defendant. In his affidavit, plaintiffs’ “practice and billing manager” alleged that he “issued all of the billings,” that he “personally billed out the claim,” and that “[a]ll billing of plaintiff was sent to defendant.” The foregoing allegations in the affidavit are insufficient to demonstrate personal knowledge of the mailing of the claim forms, and do not contain an adequately detailed description of standard office mailing procedure so as to create a presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Accordingly, having failed to establish the facts constituting the claim (CPLR 3215 [f]), namely, the submission of the claims to defendant, upon reargument, the motion by defendant for renewal should have been granted and plaintiffs’ underlying motion for leave to enter a default judgment denied.
Moreover, the court erred in adhering to that portion of its earlier order which denied renewal of the underlying cross motion. While generally delay by an insurer will not be acceptable as a reasonable excuse for a default (see A.B. Med. Servs. PLLC v Travelers Prop. Cas. Co., 6 Misc 3d 53 [App Term, 2d & 11th Jud Dists 2004]), that rule is not absolute. “[W]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits . . . [There is] no basis to categorically exclude consideration of a delay by an insurance company in making such a determination” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]). In the instant case, there was a sufficient showing to establish a reasonable excuse for the defendant’s default in answering, particularly in light of the initial delay by the office of the Superintendent of Insurance, upon which service was made, in forwarding process to defendant. Moreover, defendant’s submissions in support of its cross motion adequately demonstrated that it had a [*3]meritorious defense.
Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: April 28, 2006
Legal questions (3)
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the providers failed to establish submission of their claims for a default judgment because the billing manager's affidavit showed neither personal knowledge of mailing nor a detailed standard office mailing procedure.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the billing manager's statements that he issued and billed out the claims did not show personal knowledge of mailing or a detailed standard office mailing procedure, so submission was not established.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
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
Held the insurer's default in answering excused, given the Superintendent of Insurance's initial delay in forwarding process and a showing of a meritorious defense, and allowed it to serve its answer.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U))The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 24481) LimitedThe insurer's office-failure excuse was insufficient to open its default, but the providers' proof did not support a default judgment.
Cited by
- Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192)A fee schedule dispute remained triable because the insurer established neither a proper scheduled fee nor a comparable fee for the goods.
- Lefferts Med., Inc. v Lumbermens Mut. Cas. Co. (2006 NY Slip Op 51136(U))A provider that accepts and retains an insurer's late answer waives its right to obtain a default judgment.
- Post Traumatic Med. Care P.C. v Travelers Home & Mar. Ins. Co. (2006 NY Slip Op 52222(U))The provider failed to establish when its claim was mailed, and its challenge to the insurer's entitlement to discovery was unpreserved.
Similar decisions
- 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.
- A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))The provider failed to establish a business-records foundation and could not appeal discovery relief entered on its default.
- Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co. (2010 NY Slip Op 52008(U))The insurer failed to reasonably explain its failure to refile opposition papers after the clerk identified the filing error.
- A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))The provider failed to show a reasonable excuse for submitting late opposition after stipulating to a summary judgment briefing schedule.
- A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51031(U))The providers' ambiguous billing affidavit failed to establish a prima facie case, but the insurer also failed to obtain dismissal.