May 3, 2019
Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2019 NY Slip Op 50685(U))
https://www.beynensonlaw.com/case-law/prompt-med-supply-inc-v-nationwide-affinity-ins-co-of-am-2019-ny-slip-op50685u/
- Decided
- May 3, 2019
- Citation
- 2019 NY Slip Op 50685(U) · 63 Misc 3d 146(A)
- Posture
- Default or vacatur
- Outcome
- Insurer prevailed
- Issues
- Defaults and vacatur
- Legal questions
- Vacating a default: excuse and defense (see the maps)
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 Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2019 NY Slip Op 50685(U))
| Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. |
| 2019 NY Slip Op 50685(U) [63 Misc 3d 146(A)] |
| Decided on May 3, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-108 K C
against
Nationwide Affinity Ins. Co. of America, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Kevin J. Philbin (Ivy Cherian of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 8, 2016. The order granted defendant’s motion to vacate a judgment of that court entered June 29, 2019 upon defendant’s failure to appear or answer the complaint.
ORDERED that the order is affirmed, with $25 costs.
Plaintiff commenced this action on April 9, 2016 to recover assigned first-party no-fault benefits. Defendant was served with the complaint on April 19, 2016, and plaintiff filed proof of service of the complaint on April 25, 2016. On May 30, 2016, plaintiff applied to the clerk for a default judgment, pursuant to CPLR 3215 (a). On May 31, 2016, defendant served its answer. A default judgment was entered on June 29, 2016. Plaintiff appeals from an order entered September 8, 2016 granting defendant’s motion to vacate the default judgment and deeming defendant’s answer to be timely.
Upon a review of the record, we find no merit to plaintiff’s sole contention on appeal that defendant failed to establish a reasonable excuse for its default (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745 [2018]; Estrada v Selman, 130 AD3d 562 [*2][2015]). Consequently, we find no reason to disturb the order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
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.
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
Upheld vacatur of the default judgment and deemed the insurer's answer timely, finding no merit to the provider's sole contention that the insurer failed to show a reasonable excuse for its brief default.
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.
- Allstate Ins. Co. v North Shore Univ. Hosp. (2018 NY Slip Op 05268) FollowedThe provider's reasonable excuse and potentially meritorious defense warranted vacating its default in the insurer's de novo action.
Similar decisions
- Prompt Med. Supply, Inc. v State Farm Mut. Auto Ins. Co. (2019 NY Slip Op 50503(U))The insurer's default was excused based on possible withdrawal and the provider's assurance that no default proceedings would be commenced.
- 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.
- 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.
- 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.
- Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U))The provider failed to excuse its seven-year delay in seeking a default judgment or show a meritorious claim.