June 20, 2016

ALFA Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50942(U))

Headnote

The relevant facts of the case are that ALFA Medical Supplies, Inc., acting as an assignee of Juan Vargas, filed a complaint against Allstate Ins. Co. to recover first-party no-fault benefits. Allstate Ins. Co. failed to respond to the complaint, resulting in a default judgment being entered against them. Allstate Ins. Co. then moved to vacate the default judgment, claiming a clerical error in their office caused them to overlook the summons and complaint. The main issue decided by the court was whether Allstate Ins. Co. provided a reasonable excuse for their two-year delay in answering the complaint. The holding of the court was that the affidavit provided by the claim representative of Allstate Ins. Co. was insufficient to show that the failure to timely appear and answer was due to a clerical error, and therefore the motion to vacate the default judgment was denied and the default judgment was reinstated.

Reported in New York Official Reports at ALFA Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50942(U))

ALFA Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50942(U)) [*1]

ALFA Med. Supplies, Inc. v Allstate Ins. Co.

2016 NY Slip Op 50942(U) [52 Misc 3d 129(A)]

Decided on June 20, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P, Lowe, III, Ling-Cohan, JJ.
570085/16

ALFA Medical Supplies, Inc., a/a/o Juan Vargas, Plaintiff-Appellant,
against
Allstate Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Michael L. Katz, J.), entered May 14, 2015, which granted defendant’s motion to vacate a default judgment.

Per Curiam.

Order (Michael L. Katz, J.), entered May 14, 2015, reversed, with $10 costs, motion denied and default judgment reinstated.

Defendant-insurer failed to offer a reasonable excuse to adequately explain its two-year delay in answering the complaint in this action seeking to recover first-party no-fault benefits. The affidavit of defendant’s claim representative, who was employed in defendant’s office in Hauppauge, New York, averred that there was no record of the summons and complaint in defendant’s computer system. However, the affiant failed to demonstrate personal knowledge of the office procedures put in place by defendant in connection with the handling of a summons and complaint received at defendant’s office in Lake Success, New York (see Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]; Medcare Supply, Inc. v Farmers New Century Ins. Co., 45 Misc 3d 135[A], 2014 NY Slip Op 51752[U][App Term, 1st Dept. 2014]). “Thus, that affidavit was insufficient to show that the failure to timely appear and answer was due to a clerical error which caused the summons and complaint to be overlooked” (Westchester Med. Ctr., 69 AD3d at 614). Accordingly, there is no need to reach the issue of meritorious defense (see Uram v Smith, 138 AD3d 553 [2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 20, 2016