December 30, 2008

Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596)

https://www.beynensonlaw.com/case-law/montefiore-med-ctr-v-auto-one-ins-co-2008-ny-slip-op-10596/

Court: Appellate Division, Second Department
Decided: December 30, 2008
Citation: 2008 NY Slip Op 10596 · 57 AD3d 958
Posture: Default or vacatur
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
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

Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958 (2d Dept 2008)

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 its denial of receipt did not rebut proof of proper service. The Appellate Division, Second Department, affirmed the denial of the insurer's motion under CPLR 5015 (a) (1) to vacate a default judgment awarding the providers no-fault benefits under two insurance contracts. The providers established service through delivery to the Assistant Deputy Superintendent and Chief of Insurance under Insurance Law § 1212. The insurer did not challenge the address on file with the Superintendent, and mere denial of receipt was insufficient. Even treating the motion as one under CPLR 317, the insurer failed to show that it lacked actual notice of the summons in time to defend.

Reported in New York Official Reports at Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596)

Montefiore Med. Ctr. v Auto One Ins. Co.

2008 NY Slip Op 10596 [57 AD3d 958]

December 30, 2008

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 11, 2009

Montefiore Medical Center et al., Respondents,
v
Auto One Insurance Company, Appellant.

—[*1] Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondents.

In an action to recover no-fault medical benefits under two insurance contracts, the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated February 28, 2008, which denied its motion pursuant to CPLR 5015 (a) (1) to vacate a judgment of the same court dated September 18, 2007, entered upon its default in appearing or answering the complaint, which was in favor of the plaintiffs and against it in the principal sum of $43,030.53.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate a judgment entered upon its default in appearing or answering the complaint since it failed to demonstrate a reasonable excuse for the default (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Giovanelli v Rivera, 23 AD3d 616 [2005]). The plaintiffs established that they effectuated service upon the defendant through delivery of the summons and complaint upon the Assistant Deputy Superintendent and Chief of Insurance (see Insurance Law § 1212; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; see also CPLR 311 [a] [1]). The defendant did not contend that the address on file with the Superintendent of Insurance was incorrect, and the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by the affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]; [*2]Carrenard v Mass, 11 AD3d 501 [2004]; Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]). Even if the defendant’s motion were treated as one made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]), the defendant failed to meet its burden of showing that it did not receive actual notice of the summons in time to defend the action (see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]). Skelos, J.P., Dillon, Carni and Leventhal, JJ., concur.

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

Open the full map

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

Held the insurer's mere denial of receipt of process served on the Superintendent was no reasonable excuse under CPLR 5015(a)(1) and did not show lack of actual notice under CPLR 317, so vacatur was denied.

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

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 service by delivery to the Superintendent of Insurance under Insurance Law § 1212 was proper, the insurer did not claim its address on file was wrong, and its bare denial of receipt did not rebut the presumption.

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

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.

Hospital for Joint Diseases v Lincoln Gen. Ins. Co. (2008 NY Slip Op 07619) Contrasted (cf., but see)The insurer obtained vacatur of its default by showing that it lacked actual notice in time to defend and might have a meritorious defense.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 04260) FollowedThe insurer obtained default vacatur under CPLR 317 by showing untimely actual notice of the summons and meritorious defenses.

Cited by

A label shows how the later decision treated this one.

Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138) FollowedThe insurer failed to justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense.
Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U)) FollowedThe insurer established lack of actual notice in time to defend and a meritorious policy-cancellation defense, warranting vacatur under CPLR 317.

Similar decisions

New York & Presbyt. Hosp. v Auto One Ins. Co. (2006 NY Slip Op 02509)The insurer showed a reasonable excuse for its brief answering delay and potentially meritorious defenses, warranting default vacatur.
New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa. (2005 NY Slip Op 01691)The insurer failed to establish a meritorious defense required to vacate the provider's default judgment.
American Tr. Ins. Co. v Bruno Med. Supply, Inc. (2026 NY Slip Op 01332)The provider's contradictory and conclusory allegations of law office failure did not reasonably excuse its default in answering.
Westchester Med. Ctr. v Hartford Cas. Ins. Co. (2009 NY Slip Op 00528)The insurers showed an excusable default and a potentially meritorious defense based on partial exhaustion of policy limits.
New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)The insurer's clerical-oversight affidavit and potentially meritorious defense justified vacating its default judgment.