July 8, 2011

Pdg Psychological, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51315(U))

https://www.beynensonlaw.com/case-law/pdg-psychological-p-c-v-clarendon-natl-ins-co-2011-ny-slip-op51315u/

Court: Appellate Term, Second Department
Decided: July 8, 2011
Citation: 2011 NY Slip Op 51315(U) · 32 Misc 3d 130(A)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Defaults and vacatur Discovery and procedure

Cite as

Pdg Psychological, P.C. v Clarendon Natl. Ins. Co., 32 Misc 3d 130(A), 2011 NY Slip Op 51315(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 waived any right to dismissal for abandonment under CPLR 3215 (c) by engaging in discovery. After the provider obtained a default order, the insurer sought discovery preclusion and entered a so-ordered stipulation establishing a discovery schedule. The insurer later obtained vacatur of the default judgment but was denied dismissal of the complaint. On appeal, it argued that the provider had failed to take proceedings for entry of judgment within one year after the default order. Its participation in discovery, evidenced by the stipulation, waived any right it may have had to dismissal on that ground. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the provider's action pending.

Reported in New York Official Reports at Pdg Psychological, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51315(U))

[*1]

Pdg Psychological, P.C. v Clarendon Natl. Ins. Co.

2011 NY Slip Op 51315(U) [32 Misc 3d 130(A)]

Decided on July 8, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-45 Q C.

PDG Psychological, P.C. as Assignee of VICTORIA DUVERNE, Respondent,
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered July 21, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, an answer was filed in November 2003. In February 2004, plaintiff moved for leave to enter a default judgment, arguing that “[t]here has been no Answer interposed to date, nor has an extension of time to answer been requested or granted.” By order entered March 2, 2004, plaintiff’s motion was granted, on default. In April 2006, defendant moved to preclude plaintiff from offering evidence at trial due to its failure to respond to defendant’s discovery demands. By a so-ordered stipulation dated April 11, 2006, the parties agreed to a discovery schedule. On the same date, plaintiff served defendant with notice of entry of the March 2, 2004 default order. Thereafter, defendant moved to, among other things, vacate the default order and dismiss the complaint as abandoned pursuant to CPLR 3215 (c). By order entered July 21, 2009, the Civil Court granted the branch of defendant’s motion seeking to vacate the default judgment and denied the branch of defendant’s motion seeking to dismiss the complaint. This appeal by defendant ensued.

Defendant argues that since plaintiff failed to take proceedings for the entry of judgment within one year after the March 2, 2004 default order, it is entitled to the dismissal of the complaint pursuant to CPLR 3215 (c). However, defendant’s conduct in engaging in discovery, as evidenced by the April 11, 2006 stipulation, acted as a waiver of any right it may have had to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Sutter v Rosenbaum, 166 AD2d 644, 645 [1990]; Myers v Slutsky, 139 AD2d 709, 710 [1988]). Consequently, the Civil Court did not improvidently exercise its discretion in denying the branch of defendant’s motion seeking to dismiss the complaint as abandoned.
Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

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