July 10, 2008
Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51551(U))
https://www.beynensonlaw.com/case-law/midwood-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2008-ny-slip-op51551u/
- Decided
- July 10, 2008
- Citation
- 2008 NY Slip Op 51551(U) · 20 Misc 3d 137(A)
- Posture
- Default or vacatur
- Outcome
- Insurer prevailed
- Legal questions
- Vacating a default: excuse and defense · Fraudulent incorporation (Mallela) (see the maps)
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.
Reported in New York Official Reports at Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51551(U))
| Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2008 NY Slip Op 51551(U) [20 Misc 3d 137(A)] |
| Decided on July 10, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-938 K C.
against
State Farm Mutual Automobile Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 2006. The order denied defendant’s motion to vacate the default judgment entered against it and to extend its time to appear.
Order reversed without costs and defendant’s motion to vacate the default judgment entered against it and to extend its time to appear granted. Defendant shall serve and file its answer within 20 days of the date of the order hereon.
Plaintiff, a health care provider, obtained a default judgment in this action to recover assigned first-party no-fault benefits. Defendant’s motion to, inter alia, vacate the default judgment was denied on the ground that defendant’s papers did not establish the existence of a meritorious defense. This appeal by defendant ensued.
The sole issue raised on appeal is whether defendant established that it possessed a meritorious defense to the instant action. In our opinion, since the affidavit executed by defendant’s special investigator, which was submitted in support of defendant’s motion, “suffice[d] to [demonstrate] issues as to who really operated and controlled plaintiff” (Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052 [App Term, 2d & 11th Jud Dists 2007]), defendant established the existence of a meritorious defense to the action. Accordingly, the order is reversed and defendant’s motion granted.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008
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.
Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?
This decision: Excuse (or lack of actual notice under CPLR 317) and potentially meritorious defense or claim shown; default vacated or late answer allowed
Granted the insurer's motion to vacate the default judgment and extend its time to appear because its special investigator's affidavit raised issues about who actually controlled the provider, a meritorious defense.
Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
On the merits, when may a no-fault insurer withhold payment because unlicensed persons own or control the provider (Mallela)?
This decision: Evidence of unlicensed ownership/control enough to proceed, but not resolved (rules on the question, but another ground decided the case)
Vacated the insurer's default because its special investigator's affidavit raised issues as to who really operated and controlled the provider, establishing a meritorious defense.
Of the 61 decisions on this question in the Second Department courts and the Court of Appeals, 19 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50052(U)) FollowedFraudulent licensing under 11 NYCRR 65-3.16 (a) (12) is a nonwaivable defense outside the 30-day preclusion rule.
Similar decisions
- Great Wall Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51571(U))The insurer established a reasonable excuse for its short answering delay and a potentially meritorious Mallela defense, warranting vacatur.
- Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51552(U))The provider's prior discovery dismissal did not bar a second action because it did not constitute a determination on the merits.
- AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))The provider's failure to answer discovery or oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
- New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))The provider's right to appeal directly from the discovery and amendment order terminated when judgment was entered in the action.
- North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(U))The provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply.