August 6, 2012

Chi Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 51496(U))

https://www.beynensonlaw.com/case-law/chi-point-acupuncture-p-c-v-clarendon-ins-co-2012-ny-slip-op51496u/

Court: Appellate Term, Second Department
Decided: August 6, 2012
Citation: 2012 NY Slip Op 51496(U) · 36 Misc 3d 141(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Chi Point Acupuncture, P.C. v Clarendon Ins. Co., 36 Misc 3d 141(A), 2012 NY Slip Op 51496(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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.

A provider that fails to seek a default judgment within one year must show a reasonable excuse and a meritorious complaint to avoid abandonment. The insurer defaulted in the provider's action for assigned no-fault benefits and, more than two years later, moved to dismiss under CPLR 3215 (c). The provider did not oppose the motion. Under that provision, dismissal is required when a plaintiff fails to initiate default judgment proceedings within one year and does not make the necessary showing. The Appellate Term, Second Department, reversed the Civil Court's order denying the motion and granted dismissal of the complaint as abandoned.

Reported in New York Official Reports at Chi Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 51496(U))

[*1]

Chi Point Acupuncture, P.C. v Clarendon Ins. Co.

2012 NY Slip Op 51496(U) [36 Misc 3d 141(A)]

Decided on August 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3056 Q C.

Chi Point Acupuncture, P.C. NO AVRORA as Assignee of SONYA TAVARES, Respondent, —
against
Clarendon Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 8, 2010. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in May of 2008. Defendant defaulted. More than two years later, defendant moved to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court denied defendant’s unopposed motion and defendant appeals.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, [*2]Inc., 23 AD3d 624, 625 [2005]). Upon a review of the facts, and plaintiff’s failure to submit opposition to defendant’s motion, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3215 (c) is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012

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