January 26, 2018

Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U))

https://www.beynensonlaw.com/case-law/citywide-med-servs-p-c-v-metropolitan-cas-ins-co-2018-ny-slip-op50119u/

Court: Appellate Term, Second Department
Decided: January 26, 2018
Citation: 2018 NY Slip Op 50119(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co., 2018 NY Slip Op 50119(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 excuse its seven-year delay in seeking a default judgment or show a meritorious claim. The insurer had defaulted in answering, and the provider later sought a default judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion to dismiss the complaint as abandoned under CPLR 3215 (c). A reference to a possible settlement and a single letter did not establish settlement discussions excusing the delay. The provider also submitted neither a verified complaint nor an affidavit from a person with knowledge of the claims; the attorney-signed complaint lacked attached claim forms and personal-knowledge support.

Reported in New York Official Reports at Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U))

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

Citywide Medical Services, P.C., as Assignee of Yefim Yegorov and Anna Yegorova, Respondent,
against
Metropolitan Casualty Insurance Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang. Esq.), for appellant. Murray Hill Legal Services, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated February 24, 2015. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action in 2006 to recover assigned first-party no-fault benefits. Defendant defaulted in answering, and, more than seven years later, plaintiff moved for the entry of a default judgment. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court, in effect, denied the motion and cross motion but permitted defendant to submit an answer and directed plaintiff to file a notice of trial. Defendant appeals from so much of the order as denied its cross motion to dismiss the complaint.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and “demonstrate that the complaint is meritorious, failing which the court, . . . on motion, must dismiss the complaint as abandoned” (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Giglio v NTIMP, Inc., 86 AD3d 301 [2011]).

Here, plaintiff failed to establish a reasonable excuse for the delay (see Mattera v Capric, 54 AD3d 827 [2008]). Plaintiff’s counsel asserted only that, in 2006, there was a possible settlement entered into between the parties. This lone assertion, along with a 2006 letter referencing a purported settlement, is insufficient to establish a history of settlement discussions which could possibly excuse the seven-year delay (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783 [2008]). Moreover, plaintiff submitted “neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim” (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The complaint, attached to the motion, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (see Solano v Castro, 72 AD3d 932 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 26, 2018

Cited in this decision

A label shows how this decision treated the case it cites.

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50778(U)) FollowedA provider seeking default judgment more than a year after default must show a reasonable excuse for delay and a meritorious complaint.
Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U)) FollowedThe provider's default-motion papers failed to establish entitlement to an unconditional judgment under CPLR 3215 (f).
Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford (2010 NY Slip Op 50889(U)) FollowedThe provider's default judgment motion lacked personal-knowledge proof of its claim and an admissible business-records foundation.

Similar decisions

Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U))The insurer established a reasonable excuse for default through process-receipt procedures and records showing no record of the lawsuit.
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.
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.
Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U))The provider's action was dismissed as abandoned because it sought a default judgment after one year without a reasonable excuse.
Pro-Med Med., P.C. v Metropolitan Transp. Auth. (2018 NY Slip Op 51817(U))The self-insurer waived dismissal for abandonment under CPLR 3215 (c) by proposing an answer extension and then serving an answer.