October 20, 2010

Craniofacial Pain Mgt. v MVAIC (2010 NY Slip Op 51843(U))

https://www.beynensonlaw.com/case-law/craniofacial-pain-mgt-v-mvaic-2010-ny-slip-op-51843u/

Court
Appellate Term, Second Department
Decided
October 20, 2010
Citation
2010 NY Slip Op 51843(U) · 29 Misc 3d 130(A)
Posture
Default or vacatur
Outcome
Provider prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Defaults and vacatur MVAIC
Cite as
Craniofacial Pain Mgt. v MVAIC, 29 Misc 3d 130(A), 2010 NY Slip Op 51843(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

MVAIC's motion to vacate its default judgment was untimely because it was made more than one year after service of notice of the judgment. The provider sought assigned no-fault benefits, and MVAIC moved under CPLR 5015 to vacate the judgment entered against it. The Appellate Term, Second Department, affirmed denial under CPLR 5015 (a) (1). It alternatively rejected MVAIC's defense because Insurance Law § 5214 does not bar a default judgment in an action naming MVAIC as defendant when MVAIC defaults. The court found it unnecessary to consider whether MVAIC had demonstrated a reasonable excuse.

Reported in New York Official Reports at Craniofacial Pain Mgt. v MVAIC (2010 NY Slip Op 51843(U))

[*1]
Craniofacial Pain Mgt. v MVAIC
2010 NY Slip Op 51843(U) [29 Misc 3d 130(A)]
Decided on October 20, 2010
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2010
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-375 Q C.

Craniofacial Pain Management as Assignee of Richard Montalvo, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 20, 2009. The order denied defendant’s motion to vacate a default judgment.


ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate a default judgment entered against it. Inasmuch as MVAIC’s motion was made more than one year after MVAIC was served with notice of the judgment, the court properly denied MVAIC’s motion on the ground that it was untimely (CPLR 5015 [a] [1]; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885 [2010]; Terlizzese v Robinson’s Custom Serv. Inc., 25 AD3d 547 [2006]). In any event, MVAIC’s proffered defense lacks merit since Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted (A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 25 Misc 3d 138[A], 2009 NY Slip Op 52363[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 20, 2010

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