September 18, 2026

Midwood Metro. Med., P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 51589(U))

https://www.beynensonlaw.com/case-law/midwood-metro-med-p-c-v-permanent-gen-assur-corp-2026-ny-slip-op-51589u/

Court
Appellate Term, Second Department
Decided
September 18, 2026
Citation
2026 NY Slip Op 51589(U) · 90 Misc 3d 129(A)
Posture
Default or vacatur
Outcome
Provider prevailed
Issues
Defaults and vacatur Jurisdiction and service
Cite as
Midwood Metro. Med., P.C. v Permanent Gen. Assur. Corp., 90 Misc 3d 129(A), 2026 NY Slip Op 51589(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2026)

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 default based on nonreceipt of process served on its registered agent. The process server's affidavit established proper service under CPLR 311 (a) (1). The insurer's litigation representative reported finding no summons and complaint in its files or databases, but no affidavit from a person with personal knowledge contradicted service, disputed the agent's authority or explained why such an affidavit could not be provided. The Appellate Term, Second Department, reversed and denied vacatur under CPLR 5015 (a) (1), without reaching whether a potentially meritorious defense existed. Relief under CPLR 317 was also unavailable because the insurer's agent had been personally served, as contemplated by CPLR 317 and 318.

Reported in New York Official Reports at Midwood Metro. Med., P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 51589(U))

Midwood Metro. Med., P.C. v Permanent Gen. Assur. Corp.
2026 NY Slip Op 51589(U) [90 Misc 3d 129(A)]
Decided on September 18, 2026
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This opinion is uncorrected and will not be published in the printed Official Reports.


Digest-Index Classification: Judgments—Default Judgment—Vacatur—Reasonable Excuse

Midwood Metropolitan Medical, P.C., as Assignee of Ayanna Piquion, Appellant,

v

Permanent General Assurance Corp., Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on September 18, 2026

2025-190 K C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Freiberg, Peck & Kang, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated November 1, 2024. The order granted defendant’s motion to vacate a judgment entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were delivered to “John Doe,” the “managing agent” of defendant’s “registered agent” (CSC, located at 80 State Street, Albany, NY 12207) for accepting service of process on defendant’s behalf in the State of New York. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 317 and CPLR 5015 (a) (1). Plaintiff opposed the motion. By order dated November 1, 2024, the Civil Court (Odessa Kennedy, J.) granted defendant’s motion to vacate the default judgment based on CPLR 5015 (a) (1). On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.

A defendant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]). The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving an agent of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Milky Way Acupuncture, P.C. v Allstate Ins. Co., 68 Misc 3d 128[A], 2020 NY Slip Op 50935[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In support of its motion, defendant provided an affidavit from its personal injury protection litigation representative who averred that, based upon her search of defendant’s files and databases, she determined that the summons and complaint was never received by defendant. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse. Defendant did not submit an affidavit from a person with personal knowledge who (1) contradicted the allegations in the process server’s affidavit or (2) demonstrated that plaintiff was incorrect to serve CSC by, for example, denying that CSC is its registered agent for service of process in New York, and failed to submit an affidavit from a person with personal knowledge explaining why it could not provide such an affidavit (see HSBC Bank USA, N.A. v Yun Seek Bahk, 227 AD3d 784, 786 [2024]; Berganza v Pecora, 192 AD3d 743, 744 [2021]; Jian Hua Tan v AB Capstone Dev., LLC, 163 AD3d 937, 938 [2018]). Thus, defendant’s motion was improperly granted pursuant to CPLR 5015 (a) (1), and it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Furthermore, CPLR 317 is not a basis to vacate the default judgment, since defendant’s agent was personally served with process (see CPLR 317, 318).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: September 18, 2026

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