September 1, 2017

Bayshore Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51121(U))

https://www.beynensonlaw.com/case-law/bayshore-chiropractic-p-c-v-allstate-ins-co-2017-ny-slip-op-51121u/

Court: Appellate Term, Second Department
Decided: September 1, 2017
Citation: 2017 NY Slip Op 51121(U)
Posture: Default or vacatur
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Bayshore Chiropractic, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51121(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 insurer's explanation of law office failure during a file transfer showed attorney neglect and did not reasonably excuse its default. The provider obtained a default judgment after its summary judgment motion went unopposed. To vacate under CPLR 5015 (a), the insurer had to show a reasonable excuse and a potentially meritorious defense. Although CPLR 2005 permits law office failure as an excuse, it requires a detailed and credible explanation. The Appellate Term, Second Department, affirmed denial of the insurer's motion to vacate, finding no improvident exercise of discretion. Without a reasonable excuse, the court did not reach whether the insurer had a potentially meritorious defense.

Reported in New York Official Reports at Bayshore Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51121(U))

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

Bayshore Chiropractic, P.C., as Assignee of Isabella Cifone, Respondent,
against
Allstate Insurance Company, Appellant.

Peter C. Merani, P.C. (Eric Wharburg, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 16, 2015. The order denied defendant’s motion to, among other things, vacate a default judgment entered March 12, 2014 pursuant to an order of the same court (Harriet L. Thompson, J.) dated February 13, 2014 granting plaintiff’s unopposed motion for summary judgment.

ORDERED that the order entered July 16, 2015 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order dated February 13, 2014, the Civil Court (Harriet L. Thompson, J.) granted plaintiff’s motion without opposition. A default judgment awarding plaintiff the principal sum of $9,500 was entered on March 12, 2014. Defendant moved, by order to show cause dated October 20, 2014, to, among other things, vacate the default judgment. Defendant appeals from an order of the Civil Court (Katherine A. Levine, J.) entered July 16, 2015, which denied defendant’s motion.

To warrant the opening of its default in opposing plaintiff’s motion for summary judgment, defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a]; Simpson v Tommy Hilfiger [*2]U.S.A., Inc., 48 AD3d 389 [2008]). While a claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005), the claim must be supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In this case, defendant’s claim of law office failure during the transfer of the case file from defendant’s prior counsel was insufficient to constitute a reasonable excuse for the default, as the explanation offered by defense counsel indicated that the default was the result of attorney neglect (see Morales v Perfect Dental, P.C., 73 AD3d 877 [2010]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant’s motion. In the absence of a reasonable excuse for the default, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969 [2016]).

Accordingly, the order entered July 16, 2015 is affirmed.

ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 01, 2017

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

Held the insurer's default in opposing summary judgment not excused because its claimed law office failure during the file transfer from prior counsel showed attorney neglect, not a detailed and credible excuse.

Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decision

Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.

Cited by

A label shows how the later decision treated this one.

Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (2021 NY Slip Op 50833(U)) FollowedThe provider's failure to file a notice of trial after a 90-day demand was not excused by its unexplained claim of law office failure.
Silver Acupuncture, P.C. v GEICO Indem. Co. (2020 NY Slip Op 51134(U))The provider failed to give a credible law office failure excuse for filing its notice of trial after the 90-day demand period.
Faith Acupuncture, P.C. v Government Empls. Ins. Co. (2019 NY Slip Op 50829(U))The provider's unexplained law office failure did not justify its delay in filing a notice of trial after a 90-day demand.

Similar decisions

Clinton Place Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 50400(U))The insurer's pattern of neglect did not warrant vacatur of the default judgment entered after it failed to oppose summary judgment.
GC Chiropractic, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51954(U))The insurer failed to establish a reasonable excuse for its default, and the process server's affidavit showed proper service.
Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))The insurer's motion to vacate a default judgment was denied because it insufficiently alleged law-office failure as a reasonable excuse.
Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))The insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering.
Psychmetrics Med., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50690(U))The provider established a reasonable excuse for failing to proceed at trial because its witness was out of the country.