August 19, 2008

Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51755(U))

https://www.beynensonlaw.com/case-law/neurology-acupuncture-serv-p-c-v-state-farm-mut-auto-ins-co-2008-nyslip-op-51755u/

Court: Appellate Term, Second Department
Decided: August 19, 2008
Citation: 2008 NY Slip Op 51755(U) · 20 Misc 3d 143(A)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Defaults and vacatur
Legal questions: Vacating a default: excuse and defense (see the maps)

Cite as

Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 143(A), 2008 NY Slip Op 51755(U) (App Term, 2d Dept, 2d & 11th Jud Dists 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 default because its attorney did not allege personal knowledge of the asserted excuse. To vacate the default judgment in this assigned no-fault action under CPLR 5015 (a) (1), the insurer had to show both a reasonable excuse and a meritorious defense. The record did not support the excuse, which appeared only in counsel's submission. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion, preserving the provider's default judgment. It passed on no other issue.

Reported in New York Official Reports at Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51755(U))

[*1]

Neurology & Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51755(U) [20 Misc 3d 143(A)]

Decided on August 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1960 K C.

Neurology and Acupuncture Service, P.C. a/a/o MARTHA GAVILANES, ZULAN PIEDRAHITA and HERNAN MALDOMADO, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense
(see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We find that there is no support in the record for the determination that defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by defendant’s attorney, who did not allege personal knowledge of his assertions. Consequently, the court improvidently exercised its discretion in granting defendant’s motion. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

Legal questions

A question 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

Reversed vacatur of the default judgment because the insurer's only excuse came from its attorney, who did not allege personal knowledge of the asserted facts.

Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decision

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.

Similar decisions

A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50243(U))The insurer failed to establish a reasonable excuse for its default or a meritorious defense to the providers' claims.
Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 50581(U))The insurer's motion to vacate the default judgment was granted upon a showing of a reasonable excuse and a meritorious defense.
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.
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.
Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51551(U))The insurer established a meritorious defense through an investigator's affidavit raising issues about who operated and controlled the provider.