July 28, 2011

Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-qbe-ins-co-2011-ny-slip-op-51455u/

Court: Appellate Term, Second Department
Decided: July 28, 2011
Citation: 2011 NY Slip Op 51455(U) · 32 Misc 3d 134(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Defaults and vacatur Provider's prima facie case

Cite as

Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134(A), 2011 NY Slip Op 51455(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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's default-motion papers failed to establish entitlement to an unconditional judgment under CPLR 3215 (f). The Appellate Term, Second Department, affirmed an order directing the insurer to answer within 30 days and allowing judgment only upon failure to answer. The provider's motion was unopposed, but its complaint was unverified and its affidavit did not establish the affiant's employment by the provider or personal knowledge of the claim's factual basis. Nor did the affidavit establish that the attached documents were admissible under CPLR 4518. Without a verified complaint or an affidavit from a party with personal knowledge supplying the necessary facts, the provider was not entitled to unconditional entry of a default judgment.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51455(U))

[*1]

Eagle Surgical Supply, Inc. v QBE Ins. Co.

2011 NY Slip Op 51455(U) [32 Misc 3d 134(A)]

Decided on July 28, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., GOLIA and RIOS, JJ
2010-874 Q C.

Eagle Surgical Supply, Inc. as Assignee of Miguel Wellems , Appellant,
against
QBE Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 11, 2010. The order conditionally granted plaintiff’s motion for leave to enter a default judgment only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment in the amount demanded in the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff’s motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.

In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; 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, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, plaintiff’s motion papers did not demonstrate plaintiff’s entitlement to have its motion for leave enter a default judgment granted unconditionally.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011

Cited in this decision

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

Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256) FollowedThe provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
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.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Cited by

A label shows how the later decision treated this one.

Neurology Group v New York City Tr. Auth. (2012 NY Slip Op 50563(U)) FollowedThe provider's action was dismissed as abandoned because it failed to justify a delay exceeding 12 years or show meritorious claims.
Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U)) FollowedThe provider failed to excuse its seven-year delay in seeking a default judgment or show a meritorious claim.

Similar decisions

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))The provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.
Eagle Surgical Supply, Inc. v AIG Ins. Co. (2013 NY Slip Op 51449(U))The insurer failed to show res judicata because its declaratory judgment did not include the accident underlying the provider's claim.
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50151(U))The insurer's chiropractic peer reviews were not in admissible form and failed to support summary judgment on medical necessity.
Eagle Surgical Supply, Inc. v Travelers Indem. Co. (2010 NY Slip Op 51775(U))The provider's action was premature because it failed to supply all requested additional verification.