February 28, 2012

Rally Chiropractic, P.C. v MVAIC (2012 NY Slip Op 50325(U))

https://www.beynensonlaw.com/case-law/rally-chiropractic-p-c-v-mvaic-2012-ny-slip-op-50325u/

Court: Appellate Term, First Department
Decided: February 28, 2012
Citation: 2012 NY Slip Op 50325(U) · 34 Misc 3d 153(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Rally Chiropractic, P.C. v MVAIC, 34 Misc 3d 153(A), 2012 NY Slip Op 50325(U) (App Term, 1st Dept 2012)

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.

MVAIC's compliance conference default was vacated because counsel's miscalendaring was excusable and was neither willful nor part of a delay pattern. MVAIC sought relief from a default judgment entered after it failed to appear at the conference. The providers did not argue that the delay caused prejudice or that MVAIC lacked a meritorious defense. Considering the strong policy favoring resolution on the merits, the Appellate Term, First Department, exercised its discretion to relieve MVAIC of the unintended default. It reversed the order denying vacatur, granted MVAIC's motion, vacated the default judgment and remanded for further proceedings.

Reported in New York Official Reports at Rally Chiropractic, P.C. v MVAIC (2012 NY Slip Op 50325(U))

[*1]

Rally Chiropractic, P.C. v MVAIC

2012 NY Slip Op 50325(U) [34 Misc 3d 153(A)]

Decided on February 28, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
570850/11.

Rally Chiropractic, P.C. a/a/o Jason Rivera, and Canarsie Medical Health, P.C. a/a/o Jason Rivera, Plaintiffs-Respondents, – –

against

MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 31, 2010, which denied its motion to vacate a default judgment.

Per Curiam.

Order (Arlene P. Bluth, J.), entered August 31, 2010, reversed, with $10 costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

The record shows that defendant’s failure to appear at the compliance conference resulted from excusable law office failure, and that defense counsel’s miscalendaring of the initial scheduled date was neither willful nor part of a pattern of delay (see The Travelers Ins. Co. v Abelow, 14 AD3d 395 [2005]). Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]), and in the absence of any argument by plaintiff that the delay caused it prejudice or that defendant lacks a meritorious defense, we exercise our discretion to relieve defendant of its unintended default.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 28, 2012

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