October 30, 2008

Psychology Ym, P.C. v Hartford Acc. & Indem. Co. (2008 NY Slip Op 52208(U))

https://www.beynensonlaw.com/case-law/psychology-ym-p-c-v-hartford-acc-indem-co-2008-ny-slip-op-52208u/

Court
Appellate Term, Second Department
Decided
October 30, 2008
Citation
2008 NY Slip Op 52208(U) ยท 21 Misc 3d 135(A)
Posture
Default or vacatur
Outcome
Provider prevailed
Issues
Defaults and vacatur
Cite as
Psychology Ym, P.C. v Hartford Acc. & Indem. Co., 21 Misc 3d 135(A), 2008 NY Slip Op 52208(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 failed to establish a reasonable excuse for its default through counsel's conclusory explanation of delayed complaint processing. Vacatur under CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense. Counsel attributed the delay in forwarding the summons and complaint to the insurer's large complaint volume, but supplied no personal-knowledge account or detailed evidentiary explanation of the oversights. The insurer also failed to move expeditiously: counsel received notice of entry in December 2005 but did not move to vacate until October 2006. The Appellate Term, Second Department, affirmed denial of the motion, leaving the provider's default judgment intact.

Reported in New York Official Reports at Psychology Ym, P.C. v Hartford Acc. & Indem. Co. (2008 NY Slip Op 52208(U))

[*1]
Psychology YM, P.C. v Hartford Acc. & Indem. Co.
2008 NY Slip Op 52208(U) [21 Misc 3d 135(A)] [21 Misc 3d 135(A)]
Decided on October 30, 2008
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through November 6, 2008; it will not be published in the printed Official Reports.


Decided on October 30, 2008
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1155 K C.

Psychology YM, P.C. a/a/o JAIME DIAZ, JAMES MOORE, SHAFFEK RAHAMAN and CHANDRA RAHAMAN, Respondent,

against

Hartford Accident & Indemnity Co., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 5, 2007. The order denied defendant’s motion to vacate the default judgment entered against it.


Order affirmed without costs.
In order to vacate the default judgment entered in this action by a provider to recover assigned first-party no-fault benefits, defendant was required to establish both a reasonable excuse for the default in answering the complaint and a meritorious
defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). In his affirmation in support of the motion to vacate the default
judgment, defense counsel acknowledged that defendant was personally served with the summons and complaint on or about August 31, 2005 but stated that his office did not receive a copy of the summons and complaint until on or about October 28, 2005. He attributed the delay to defendant’s processing the large “volume of complaints received by defendant every month.” Defendant was required, however, to submit an affidavit with “supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d [*2]553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). To the extent that defense counsel stated that the carrier delayed in forwarding the summons and complaint to his office, said conclusory allegations were not based upon personal knowledge, and thus had no probative value (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, having failed to establish a reasonable excuse for its delay in answering the complaint, defendant was not entitled to vacatur of the default judgment entered against it.
We further note that defendant did not move expeditiously to vacate the default judgment. Although defense counsel stated that his office received a copy of the summons and complaint in October of 2005, and also acknowledged that his office received notice of entry of the default judgment in December of 2005, the motion to vacate the default judgment was not made until October of 2006.
Defendant’s remaining contentions lack merit. Accordingly, the order is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008

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