November 29, 2019

GC Chiropractic, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51954(U))

https://www.beynensonlaw.com/case-law/gc-chiropractic-p-c-v-allstate-ins-co-2019-ny-slip-op51954u/

Court: Appellate Term, Second Department
Decided: November 29, 2019
Citation: 2019 NY Slip Op 51954(U)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Defaults and vacatur Jurisdiction and service
Legal questions: Vacating a default: excuse and defense · Service and jurisdiction over the insurer (see the maps)

Cite as

GC Chiropractic, P.C. v Allstate Ins. Co., 2019 NY Slip Op 51954(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 insurer failed to establish a reasonable excuse for its default, and the process server's affidavit showed proper service. The provider obtained a default judgment after the insurer failed to appear or answer. The Appellate Term, Second Department, affirmed denial of the insurer's motion under CPLR 5015 (a) (1). The affidavit of service established delivery to an employee authorized to accept process, constituting prima facie proof of service under CPLR 311 (a) (1). Vacatur required both a reasonable excuse and a potentially meritorious defense. Following Santomauro v Allstate Ins. Co., the court found the insurer's employee affidavit, virtually identical to the affidavit in that case, insufficient to establish an excusable default.

Reported in New York Official Reports at GC Chiropractic, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51954(U))

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

GC Chiropractic, P.C., as Assignee of German Tome, Respondent,
against
Allstate Ins. Co., Appellant.

Peter C. Merani, P.C. (Adam Waknine of counsel), for appellant. Gary Tsirelman, P.C. (Selina Chin, David M. Gottlieb and Doug Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 4, 2017. The order denied defendant’s motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered July 27, 2016 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court, entered December 4, 2017, which denied defendant’s motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered July 27, 2016 upon defendant’s failure to appear or answer the complaint, finding that defendant had failed to establish a reasonable excuse for its default.

The affidavit of service indicates that defendant was served on May 13, 2016 by delivery of the summons and complaint to an individual at defendant’s offices who was known to the process server to be defendant’s employee authorized to accept service of process. The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving a general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [*2][2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment based on excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2019

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Vacating a default: excuse and defense

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Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?

This decision: Relief denied because no reasonable excuse (or, under CPLR 317, no lack of actual notice) was shown; meritorious defense accepted or not reached

Upheld denial of vacatur because the insurer's employee affidavit, virtually identical to one previously found deficient, failed to establish an excusable default against proper service on an authorized employee.

Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decisionCites it or cited by itCited or followed

Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.

Service and jurisdiction over the insurer

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Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Insurer validly served and subject to the court's jurisdiction, or service defect cured/excused (rules on the question, but another ground decided the case)

Held the process server's affidavit of delivery to an employee authorized to accept service was prima facie evidence of proper CPLR 311 (a) (1) service on the insurer.

Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followed

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

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

Santomauro v Allstate Ins. Co. (2019 NY Slip Op 51413(U)) FollowedThe insurer's affidavits failed to establish a reasonable excuse for defaulting despite prima facie proof of proper service.
Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. (2019 NY Slip Op 29225)The insurer failed to establish a reasonable excuse for default by citing the absence of a record of receiving process.

Cited by

GC Chiropractic, P.C. v Allstate Ins. Co. (2025 NY Slip Op 50835(U))An appellate undertaking under CPLR 5519 does not stop no-fault interest from accruing until the judgment is satisfied.

Similar decisions

Bayshore Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51121(U))The insurer's explanation of law office failure during a file transfer showed attorney neglect and did not reasonably excuse its default.
Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))The insurer failed to establish an excusable default, and the provider's default judgment remained in place.
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.
ABC Physical Therapy, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51325(U))The insurer failed to demonstrate a reasonable excuse for its default, while the provider established entitlement to a default judgment.