March 5, 2021
Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))
https://www.beynensonlaw.com/case-law/physiodynamics-llc-v-allstate-ins-co-2021-ny-slip-op-50178u/
- Decided
- March 5, 2021
- Citation
- 2021 NY Slip Op 50178(U) · 70 Misc 3d 143(A)
- Posture
- Default or vacatur
- Outcome
- Provider prevailed
- Issues
- Defaults and vacatur
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.
Reported in New York Official Reports at Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))
| Physiodynamics, LLC v Allstate Ins. Co. |
| 2021 NY Slip Op 50178(U) [70 Misc 3d 143(A)] |
| Decided on March 5, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1191 K C
against
Allstate Ins. Co., Respondent.
Gary Tsirelman, P.C. (Selina Chin and David Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered July 3, 2019. The order granted defendant’s motion to vacate a judgment of that court entered October 4, 2017 upon defendant’s failure to appear or answer the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered July 3, 2019, which granted defendant’s motion to vacate a judgment entered October 4, 2017 upon defendant’s failure to appear or answer the complaint.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]). As plaintiff argues, defendant did not sufficiently allege its purported reasonable excuse of law office failure (see Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant’s motion should have been denied.
Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 5, 2021
Cited in this decision
A label shows how this decision treated the case it cites.
- Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U)) FollowedThe insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering.
Similar decisions
- 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.
- Psychmetrics Med., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50690(U))The provider established a reasonable excuse for failing to proceed at trial because its witness was out of the country.
- Clinton Place Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 50400(U))The insurer's pattern of neglect did not warrant vacatur of the default judgment entered after it failed to oppose summary judgment.
- Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))The insurer's motion to vacate its default was denied for failure to show both a reasonable excuse and a meritorious defense.
- Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U))The insurer established a reasonable excuse for default through process-receipt procedures and records showing no record of the lawsuit.