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March 10, 2010

Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U))

https://www.beynensonlaw.com/case-law/nursing-personnel-homecare-v-new-york-cent-mut-fire-ins-co-2010-ny-slip-op50450u/

Court
Appellate Term, Second Department
Decided
March 10, 2010
Citation
2010 NY Slip Op 50450(U) · 26 Misc 3d 145(A)
Posture
Default or vacatur
Outcome
Insurer prevailed
Issues
Defaults and vacatur Policy issues
Legal questions
Vacating a default: excuse and defense · Service and jurisdiction over the insurer (see the maps)
Cite as
Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 145(A), 2010 NY Slip Op 50450(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 established lack of actual notice in time to defend and a meritorious policy-cancellation defense, warranting vacatur under CPLR 317. The provider served the Superintendent of Insurance under Insurance Law § 1212. The insurer's litigation examiner, with personal knowledge of mail-handling and claim-file procedures, stated that the insurer never received the summons, complaint or default motion. This evidence exceeded a mere denial of receipt. The examiner also stated that the assignor had canceled the policy before the accident and had not obtained another policy with the insurer. The Appellate Term, Second Department, reversed the order denying vacatur and granted the insurer's motion, finding that the Civil Court had improvidently exercised its discretion.

Reported in New York Official Reports at Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U))

[*1]
Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co.
2010 NY Slip Op 50450(U) [26 Misc 3d 145(A)]
Decided on March 10, 2010
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.
Decided on March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-290 K C.
Nursing Personnel Homecare a/a/o Evelyn White, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 18, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is reversed without costs and defendant’s motion to vacate the default judgment is granted.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment.

In order to vacate a default judgment pursuant to CPLR 5015 (a) (1), a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). A motion to vacate a default judgment is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]).

Plaintiff’s affidavit of service established that plaintiff had effectuated service upon defendant through the delivery of the summons and complaint to the Superintendent 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]). In support of defendant’s motion to vacate the default judgment, there was more than a “mere denial” of [*2]receipt of the summons and complaint (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). Defendant submitted an affidavit from one of its no-fault litigation examiners, who had personal knowledge regarding defendant’s practices and procedures in retrieving, opening and filing its mail and in maintaining its files on existing claims. In said affidavit, the no-fault litigation examiner stated that defendant had never received the summons, the complaint or the motion for a default judgment (cf. Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]). Accordingly, pursuant to CPLR 317, defendant met its burden of showing that it did not receive actual notice of the summons in time to defend the action.
Furthermore, defendant established the existence of a meritorious defense to the action. Defendant submitted an affidavit from its litigation examiner in which he stated that the assignor had cancelled her insurance policy with defendant prior to the date of the accident and had not subsequently taken out another insurance policy with defendant.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in denying defendant’s motion to vacate the default judgment. Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is granted.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

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: 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 showed under CPLR 317 that it did not receive actual notice in time to defend, through a litigation examiner's detailed mail-procedure affidavit, and a meritorious defense that the policy was cancelled before the accident.

  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 127
  • Trial courtsTrial 9
2022, Appellate Division: 1 decision (1 No reasonable excuse)2019, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2018, Appellate Division: 1 decision (1 Default excused)2017, Appellate Division: 1 decision (1 No meritorious defense)2014, Appellate Division: 1 decision (1 Default excused)2012, Appellate Division: 1 decision (1 Default excused)2011, Appellate Division: 1 decision (1 Default excused)2010, Appellate Division: 1 decision (1 Neither shown)2009, Appellate Division: 3 decisions (2 Default excused, 1 No meritorious defense)2008, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2007, Appellate Division: 3 decisions (3 Default excused)2006, Appellate Division: 7 decisions (7 Default excused)2005, Appellate Division: 3 decisions (1 Default excused, 1 No meritorious defense, 1 Neither shown)2004, Appellate Division: 4 decisions (2 Default excused, 1 No reasonable excuse, 1 Neither shown)2003, Appellate Division: 1 decision (1 No reasonable excuse)2026, Appellate Division: 1 decision (1 No reasonable excuse)2015, Appellate Division: 1 decision (1 Neither shown)2023, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2022, Appellate Term: 4 decisions (3 Default excused, 1 No reasonable excuse)2021, Appellate Term: 6 decisions (3 Default excused, 2 No reasonable excuse, 1 Neither shown)2020, Appellate Term: 10 decisions (2 Default excused, 7 No reasonable excuse, 1 Hearing or remittal)2019, Appellate Term: 18 decisions (5 Default excused, 11 No reasonable excuse, 2 No meritorious defense)2018, Appellate Term: 4 decisions (1 Default excused, 1 No reasonable excuse, 2 Neither shown)2017, Appellate Term: 14 decisions (5 Default excused, 6 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2016, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 Neither shown)2015, Appellate Term: 3 decisions (1 No reasonable excuse, 2 Neither shown)2014, Appellate Term: 2 decisions (1 No reasonable excuse, 1 No meritorious defense)2013, Appellate Term: 1 decision (1 No meritorious defense)2012, Appellate Term: 8 decisions (2 Default excused, 5 No reasonable excuse, 1 Neither shown)2011, Appellate Term: 5 decisions (1 Default excused, 2 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2010, Appellate Term: 12 decisions (4 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 3 Neither shown)2009, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 No meritorious defense)2008, Appellate Term: 7 decisions (1 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2007, Appellate Term: 1 decision (1 No reasonable excuse)2006, Appellate Term: 5 decisions (3 Default excused, 1 No meritorious defense, 1 Neither shown)2005, Appellate Term: 2 decisions (2 Default excused)2004, Appellate Term: 4 decisions (1 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2024, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2025, Appellate Term: 3 decisions (3 Default excused)2026, Appellate Term: 3 decisions (3 No reasonable excuse)2003, Appellate Term: 1 decision (1 Neither shown)2023, Trial courts: 1 decision (1 No reasonable excuse)2011, Trial courts: 1 decision (1 No reasonable excuse)2009, Trial courts: 1 decision (1 Default excused)2007, Trial courts: 1 decision (1 Default excused)2004, Trial courts: 1 decision (1 No meritorious defense)2026, Trial courts: 1 decision (1 Default excused)2006, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2024, Trial courts: 1 decision (1 Default excused)This decision
20052010201520202025
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, 67 (this one included) are in the same category.

Service and jurisdiction over the insurer

Open the full map

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 the affidavit of service established service on the insurer by delivery to the Superintendent of Insurance under Insurance Law § 1212, before granting CPLR 317 relief for lack of actual notice.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 108
  • Trial courtsTrial 15
2013, Appellate Division: 1 decision (1 Objection waived/not required)2010, Appellate Division: 1 decision (1 Jurisdiction upheld)2008, Appellate Division: 2 decisions (2 Jurisdiction upheld)2006, Appellate Division: 1 decision (1 Jurisdiction upheld)2003, Appellate Division: 1 decision (1 Jurisdiction upheld)2022, Appellate Term: 7 decisions (1 Jurisdiction upheld, 5 Service defective, 1 No jurisdiction over insurer)2021, Appellate Term: 4 decisions (2 Service defective, 1 No jurisdiction over insurer, 1 Hearing or discovery needed)2020, Appellate Term: 8 decisions (2 Jurisdiction upheld, 4 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2019, Appellate Term: 53 decisions (4 Jurisdiction upheld, 6 Service defective, 42 No jurisdiction over insurer, 1 Objection waived/not required)2018, Appellate Term: 1 decision (1 No jurisdiction over insurer)2017, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 Service defective)2016, Appellate Term: 1 decision (1 Jurisdiction upheld)2015, Appellate Term: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2014, Appellate Term: 4 decisions (1 Jurisdiction upheld, 3 No jurisdiction over insurer)2013, Appellate Term: 4 decisions (1 Jurisdiction upheld, 1 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2011, Appellate Term: 3 decisions (3 Service defective)2010, Appellate Term: 5 decisions (2 Jurisdiction upheld, 3 No jurisdiction over insurer)2009, Appellate Term: 2 decisions (2 Jurisdiction upheld)2007, Appellate Term: 2 decisions (2 Service defective)2006, Appellate Term: 1 decision (1 Jurisdiction upheld)2004, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 No jurisdiction over insurer)2023, Appellate Term: 1 decision (1 Jurisdiction upheld)2025, Appellate Term: 2 decisions (2 Hearing or discovery needed)2026, Appellate Term: 2 decisions (2 Jurisdiction upheld)2005, Appellate Term: 1 decision (1 Service defective)2024, Appellate Term: 1 decision (1 Jurisdiction upheld)2023, Trial courts: 1 decision (1 Jurisdiction upheld)2021, Trial courts: 1 decision (1 Service defective)2012, Trial courts: 1 decision (1 Jurisdiction upheld)2009, Trial courts: 1 decision (1 Jurisdiction upheld)2008, Trial courts: 2 decisions (2 Service defective)2005, Trial courts: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2004, Trial courts: 1 decision (1 Jurisdiction upheld)2003, Trial courts: 1 decision (1 Service defective)2026, Trial courts: 4 decisions (1 Jurisdiction upheld, 2 Service defective, 1 No jurisdiction over insurer)2025, Trial courts: 1 decision (1 Service defective)This decision
20052010201520202025
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)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)The insurer obtained default vacatur under CPLR 317 by showing untimely actual notice of the summons and meritorious defenses.
  • Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596) FollowedThe insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service.
  • Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138) Contrasted (cf., but see)The insurer failed to justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense.

Similar decisions

  • Nyack Hosp. v Allstate Ins. Co. (2006 NY Slip Op 52233(U))The insurer lacked a meritorious defense to vacate its default because a completed hospital facility form replaced the requested no-fault application.
  • City Wide Social Work & Psychological Servs., P.L.L.C. v State-Wide Ins. Co. (2008 NY Slip Op 50909(U))The insurer failed to establish a meritorious defense warranting vacatur of a judgment entered on an unopposed summary judgment motion.
  • 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.
  • 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.
  • 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.
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