October 16, 2020

New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))

https://www.beynensonlaw.com/case-law/new-age-acupuncture-p-c-v-global-liberty-ins-co-2020-ny-slip-op51225u/

Court: Appellate Term, Second Department
Decided: October 16, 2020
Citation: 2020 NY Slip Op 51225(U)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Declaratory judgment, res judicata Defaults and vacatur
Legal questions: Effect of insurer's declaratory judgment · Vacating a default: excuse and defense (see the maps)

Cite as

New Age Acupuncture, P.C. v Global Liberty Ins. Co., 2020 NY Slip Op 51225(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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's calendar-call default was opened and the complaint dismissed because a declaratory judgment barred the provider's claims. After joining issue, the insurer failed to appear for a scheduled court date. It sought to open the default and dismiss based on an amended order and judgment of the Supreme Court, Bronx County, declaring no obligation to pay the provider's claims arising from the underlying accident. The Appellate Term, Second Department, reversed the denial of that motion. Following Woodson v Mendon Leasing Corp., it concluded that the motion should have been granted for sufficient reason and in the interests of substantial justice.

Reported in New York Official Reports at New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))

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

New Age Acupuncture, P.C., as Assignee of Charles Carl, Respondent,
against
Global Liberty Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered June 15, 2018. The order denied defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits arising from an accident that occurred on October 19, 2011, defendant defaulted in appearing for a scheduled court date. Defendant moved to, in effect, open its default and dismiss the complaint on the ground that, by amended order and judgment dated August 1, 2016, the Supreme Court, Bronx County, had declared, insofar as is relevant here, that defendant has no obligation to pay plaintiff for claims arising out of the accident underlying this claim. Defendant appeals from an order of the Civil Court entered June 15, 2018 denying defendant’s motion to, in effect, open its default and, upon opening the default, dismiss the complaint.

In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

Accordingly, the order entered June 15, 2018 is reversed and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 16, 2020

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.

Effect of insurer's declaratory judgment

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Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?

This decision: The DJ is given preclusive effect and bars every claim in the action that the court considered

Held the insurer's motion to open its calendar default and dismiss should have been granted because a Supreme Court order and judgment declared it had no obligation to pay the provider for claims from the accident.

Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itDistinguished or limited

Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.

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: Excuse (or lack of actual notice under CPLR 317) and potentially meritorious defense or claim shown; default vacated or late answer allowed

Held the insurer's default at a calendar call should have been opened for sufficient reason and in the interests of substantial justice because a Supreme Court declaratory judgment barred the action.

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, 67 (this one included) are in the same category.

Cited in this decision

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

Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50222(U)) Contrasted (cf., but see)A default declaratory judgment conclusively determining no obligation to pay no-fault benefits bars a contrary recovery under res judicata.

Similar decisions

Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51797(U))The insurer's cross motion for summary judgment dismissing the provider's complaint was granted on appeal.
Acupuncture Works, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52374(U))An order granting a motion without written opposition is entered on default and is not appealable, even if the motion was orally argued.
Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 50501(U))The provider's complaint was dismissed after it first sought to excuse noncompliance with a 90-day demand in sur-reply.
Super Acupuncture & Herbology, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50178(U))The insurer's vacatur motion failed because it omitted the briefing stipulation and lacked evidentiary support for law office failure.
Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))The insurer established at trial that the initial and follow-up EUO scheduling letters were timely and properly mailed.