June 23, 2023

Psychmetrics Med., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50690(U))

https://www.beynensonlaw.com/case-law/psychmetrics-med-p-c-v-allstate-ins-co-2023-ny-slip-op50690u/

Court: Appellate Term, Second Department
Decided: June 23, 2023
Citation: 2023 NY Slip Op 50690(U)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Defaults and vacatur

Cite as

Psychmetrics Med., P.C. v Allstate Ins. Co., 2023 NY Slip Op 50690(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023)

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 provider established a reasonable excuse for failing to proceed at trial because its witness was out of the country. The action for assigned no-fault benefits had been dismissed under 22 NYCRR 208.14 (b) (2). Vacatur required both a reasonable excuse for the default and a meritorious cause of action. The Appellate Term, Second Department, found no improvident exercise of discretion in accepting the excuse and also found a meritorious claim. It affirmed the order granting the provider's motion to vacate the dismissal and restore the action to the trial calendar.

Reported in New York Official Reports at Psychmetrics Med., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50690(U))

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

Psychmetrics Medical, P.C., as Assignee of Kenney John, Respondent,
against
Allstate Insurance Co., Appellant.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. The Law Offices of “Shay” Shailesh Deshpande, LLC (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lance P. Evans, J.), entered February 26, 2020. The order granted plaintiff’s motion to vacate the dismissal of the action, which dismissal had been based on plaintiff’s failure to proceed at trial, and to restore the action to the trial calendar.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion to vacate the dismissal of the action, which dismissal was based on plaintiff’s failure to proceed at trial (see Uniform Rules for NY Civ Ct [22 NYCRR] § 208.14 [b] [2]), and to restore the action to the trial calendar.

“Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal ‘it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action’ ” (SZ Med., P.C. v Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Contrary to defendant’s argument on appeal, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had demonstrated a reasonable excuse for its default, as plaintiff’s witness was out of the country at the time of the trial. [*2]Contrary to defendant’s further argument, plaintiff demonstrated that it has a meritorious cause of action (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant’s remaining contentions lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 23, 2023

Cited in this decision

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

SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U)) FollowedThe provider failed to establish a reasonable excuse or a meritorious claim warranting vacatur of its dismissal for failure to proceed at trial.
V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 29226)The provider's conclusory claim that counsel failed to calendar the trial date did not reasonably excuse its default.
Brand Med. Supply, Inc. v Infinity Ins. Co. (2016 NY Slip Op 50738(U)) FollowedAn insurance policy declaration page has independent legal significance and requires authentication, not a business-record foundation.

Similar decisions

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.
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.
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.
Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))The insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering.
Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))The insurer's motion to vacate a default judgment was denied because it insufficiently alleged law-office failure as a reasonable excuse.