January 26, 2007

Comfort Zone Chiropractic, P.C. v Lumbermens Mut. Cas. Co. (2007 NY Slip Op 50151(U))

https://www.beynensonlaw.com/case-law/comfort-zone-chiropractic-p-c-v-lumbermens-mut-cas-co-2007-ny-slip-op-50151u/

Court: Appellate Term, Second Department
Decided: January 26, 2007
Citation: 2007 NY Slip Op 50151(U) · 14 Misc 3d 134(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Comfort Zone Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 134(A), 2007 NY Slip Op 50151(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A provider's retention of a late answer without timely objection precludes a default judgment against the insurer. The Appellate Term, Second Department, modified the order to vacate the default judgment in this assigned no-fault action. Under CPLR 2101 (f), the provider waived its objection to the answer's untimeliness by failing to reject it. Its representation that the insurer was in default was therefore incorrect, and vacatur was warranted without a showing of a meritorious defense, citing CPLR 5015 (a) (3). Because the provider was deemed to have accepted the answer, the insurer's request to compel acceptance was denied as academic.

Reported in New York Official Reports at Comfort Zone Chiropractic, P.C. v Lumbermens Mut. Cas. Co. (2007 NY Slip Op 50151(U))

[*1]

Comfort Zone Chiropractic, P.C. v Lumbermens Mut. Cas. Co.

2007 NY Slip Op 50151(U) [14 Misc 3d 134(A)]

Decided on January 26, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-202 K C.

Comfort Zone Chiropractic, P.C., A/A/O FERNANDO RINCON, LUIS ESPINOZA, and CARMEN ESPINOZA, Respondent,

against

Lumbermens Mutual Casualty Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 19, 2005. The order denied defendant’s motion to vacate the default judgment and to compel plaintiff to accept its late answer.

Order modified by granting defendant’s motion to the extent of vacating the default judgment entered against it; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, it is undisputed that defendant served an untimely answer and that thereafter plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel
plaintiff to accept its answer on the ground that plaintiff waived the untimeliness of the answer by failing to reject it. Defendant’s motion was denied and this appeal ensued.

A plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (see CPLR 2101 [f]; Celleri v Pabon, 299 AD2d 385 [2002]; Wittlin v Schapiro’s Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., ___ Misc 3d ___, 2006 NY Slip Op ______ [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., Misc 3d ___, 2006 NY Slip Op [App Term, 2d & 11th Jud Dists]; Abernathy v Ali, 3 Misc 3d 136[A], 2004 NY Slip Op 50509[U] [App [*2]Term, 2d & 11th Jud Dists]). Accordingly, to the extent plaintiff’s application for a default judgment was premised upon plaintiff’s representation that defendant was in default, such representation was incorrect and vacatur of the “default” judgment was warranted without regard to whether defendant demonstrated a meritorious defense (see Avenoso v Avenoso, 266 AD2d 326 [1999]; see generally CPLR 5015 [a] [3]). Since plaintiff waived any objection to the untimeliness of the answer, plaintiff is deemed to have accepted the answer. Consequently, to the extent that defendant sought to compel acceptance of the answer, that branch of defendant’s motion is denied as academic.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 26, 2007

Similar decisions

Neurology & Acupuncture Serv., P.C. v Lumbermens Mut. Cas. Co. (2006 NY Slip Op 52517(U))A provider's retention of an insurer's late answer without timely objection waives untimeliness and precludes a default judgment.
AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co. (2007 NY Slip Op 50263(U))A provider that retains an untimely answer without timely objection waives the lateness and cannot obtain a default judgment on that ground.
Ditmas Acupuncture, P.C. v Kemper Auto & Home Ins. Co. (2007 NY Slip Op 50167(U))A provider that retains a late answer without timely objection waives its untimeliness and cannot obtain a default judgment on that ground.
Lefferts Med., Inc. v Lumbermens Mut. Cas. Co. (2006 NY Slip Op 51136(U))A provider that accepts and retains an insurer's late answer waives its right to obtain a default judgment.
Amaze Med. Supply, Inc. v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 51110(U))The insurer failed to establish a meritorious defense sufficient to excuse its late answer and defeat a default judgment.