May 15, 2026

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))

https://www.beynensonlaw.com/case-law/shamayim-chiropractic-p-c-v-permanent-gen-assur-corp-2026-ny-slip-op-50791u/

Court: Appellate Term, Second Department
Decided: May 15, 2026
Citation: 2026 NY Slip Op 50791(U) · 89 Misc 3d 126(A)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Defaults and vacatur Jurisdiction and service

Cite as

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp., 89 Misc 3d 126(A), 2026 NY Slip Op 50791(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2026)

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 show a reasonable excuse for default because its denial of receipt did not specifically contradict the affidavit of service. The process server's affidavit established prima facie proper service on the insurer's authorized agent under CPLR 311 (a) (1). The insurer's representative reported finding no summons and complaint in its files or databases, but supplied neither a detailed contradiction nor an explanation for its absence. Without a reasonable excuse under CPLR 5015 (a) (1), the court did not reach the merits of the defense. Personal service on the agent also foreclosed relief under CPLR 317. The Appellate Term, Second Department, reversed the order and denied the insurer's motion to vacate the provider's default judgment.

Reported in New York Official Reports at Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp.

2026 NY Slip Op 50791(U) [89 Misc 3d 126(A)]

Decided on May 15, 2026

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This opinion is uncorrected and will not be published in the printed Official Reports.

Digest-Index Classification: Judgments—Default Judgment–Vacatur

Shamayim Chiropractic, P.C., as Assignee of Ayanna Piquion, Appellant,

Permanent General Assurance Corp., Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-189 K C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Freiberg, Peck & Kang, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated November 1, 2024. The order granted defendant’s motion to vacate a judgment entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were delivered to the managing agent of defendant’s registered agent for accepting service of process on defendant’s behalf in the State of New York. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 317 and CPLR 5015 (a) (1). Plaintiff opposed the motion. By order dated November 1, 2024, the Civil Court (Odessa Kennedy, J.) granted defendant’s motion to vacate the default judgment based on CPLR 5015 (a) (1). On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) is required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]). The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving an agent of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Milky Way Acupuncture, P.C. v [*2]Allstate Ins. Co., 68 Misc 3d 128[A], 2020 NY Slip Op 50935[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In support of its motion, defendant provided an affidavit from its personal injury protection litigation representative who averred that, based upon her search of defendant’s files and databases, she determined that the summons and complaint was never received by defendant. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant did not provide an affidavit containing a detailed and specific contradiction of the allegations in the process server’s affidavit or an explanation why it could not do so (see Berganza v Pecora, 192 AD3d 743, 744 [2021]; Deutsche Bank Natl. Trust Co. v O’King, 148 AD3d 776, 776-777 [2017]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 81 Misc 3d 141[A], 2023 NY Slip Op 51471[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Thus, defendant’s motion was improperly granted pursuant to CPLR 5015 (a) (1), and it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Furthermore, CPLR 317 is not a basis to vacate the default judgment, since defendant’s agent was personally served with process (see CPLR 317, 318).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Cited in this decision

Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))The insurer failed to establish an excusable default, and the provider's default judgment remained in place.
Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))The insurer failed to establish a reasonable excuse for its default based on nonreceipt of process or pandemic-related staffing reductions.
Renelique v Allstate Ins. Co. (2020 NY Slip Op 50401(U))The insurer failed to establish a reasonable excuse for default by asserting only that it had no record of receiving process.
Ahava Med. Diagnostic, P.C. v Hertz Co. (2021 NY Slip Op 50772(U))The defendant failed to provide a sufficiently detailed explanation of the office failure offered to excuse its default.

Similar decisions

GC Chiropractic, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51954(U))The insurer failed to establish a reasonable excuse for its default, and the process server's affidavit showed proper service.
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.
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.
ABC Physical Therapy, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51325(U))The insurer failed to demonstrate a reasonable excuse for its default, while the provider established entitlement to a default judgment.
Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.