January 3, 2017

American Tr. Ins. Co. v Baucage (2017 NY Slip Op 00015)

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-baucage-2017-ny-slip-op-00015/

Court: Appellate Division, First Department
Decided: January 3, 2017
Citation: 2017 NY Slip Op 00015 · 146 AD3d 413
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur Discovery and procedure
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

American Tr. Ins. Co. v Baucage, 146 AD3d 413 (1st Dept 2017)

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 offer a reasonable excuse for its untimely answer, and the insurer obtained a default declaration of no duty to pay. The Appellate Division, First Department, affirmed the default judgment under CPLR 3215 (a) and (f) and denial of the provider's cross motion for summary judgment and attorney fees. The insurer proved service, and the provider did not deny receipt. Moving for default judgment within 13 days of receiving the late answer defeated the contention that the insurer accepted it. Because the provider never properly filed an answer, issue was not joined, and CPLR 3212 (a) barred its summary judgment motion.

Reported in New York Official Reports at American Tr. Ins. Co. v Baucage (2017 NY Slip Op 00015)

American Tr. Ins. Co. v Baucage

2017 NY Slip Op 00015 [146 AD3d 413]

January 3, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 1, 2017

[*1]

American Transit Insurance Company, Respondent,
v
Gerbert Baucage et al., Defendants, and Innovative Medical Heights, P.C., Appellant.

Law Office of Gregory A. Goodman, P.C., Hauppauge (Gregory A. Goodman of counsel), for appellant.

Law Offices of Daniel J. Tucker, Brooklyn (Joshua M. Goldberg of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 11, 2016, which granted plaintiff’s motion for a default judgment pursuant to CPLR 3215 declaring that it owes no duty to pay any pending or future no-fault claims arising out of a September 24, 2014 motor vehicle accident, and denied the cross motion of defendant Innovative Medical Heights, P.C. (Innovative Medical) for summary judgment dismissing the complaint as against it and for attorneys’ fees, unanimously affirmed, without costs.

Supreme Court properly granted plaintiff’s motion for a default judgment. The record demonstrates that plaintiff submitted proof that it served Innovative Medical with the summons and complaint, Innovative Medical does not deny that it was received, and Innovative Medical failed to set forth a reasonable excuse as to why it failed to timely answer the complaint (see CPLR 3215 [a], [f]). Innovative Medical’s claim that plaintiff accepted its untimely answer by failing to reject it fails, because plaintiff moved for the default judgment within 13 days of its receipt (see e.g. Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005]).

Furthermore, Innovative Medical’s cross motion was properly denied. Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]). Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.

Legal questions

A question 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: Relief denied because no reasonable excuse (or, under CPLR 317, no lack of actual notice) was shown; meritorious defense accepted or not reached

Upheld a default declaratory judgment against the provider because it did not deny receiving the properly served summons and complaint and gave no reasonable excuse for failing to answer timely.

Default excusedNo reasonable excuseNo meritorious defenseNeither shownThis decision

Of the 12 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category.

Similar decisions

American Tr. Ins. Co. v Bruno Med. Supply, Inc. (2026 NY Slip Op 01332)The provider's contradictory and conclusory allegations of law office failure did not reasonably excuse its default in answering.
State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med., P.C. (2017 NY Slip Op 05992)The provider failed to show a potentially meritorious defense with an attorney-verified answer and counsel's affirmation.
Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596)The insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service.
Medical Careworks, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 51281(U))The insurer established late notice of the accident, and the provider offered neither contrary proof nor a reasonable justification.
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.