July 16, 2010

Stoessel v Allstate Ins. Co. (2010 NY Slip Op 51245(U))

Headnote

The relevant facts considered by the court were that the plaintiff, a psychologist, had filed a commercial claims action to recover assigned first-party no-fault benefits from the defendant insurance company, Allstate. Allstate failed to appear or answer, resulting in a default judgment against them in 2004. In 2008, Allstate moved to vacate the default judgment, arguing that the small claims part of the Civil Court of the City of New York did not have subject matter jurisdiction over actions brought by an assignee, and that its motion to vacate the default judgment should be granted pursuant to CPLR 317 or 5015. The main issue decided by the court was whether Allstate's motion to vacate the default judgment should be granted, and the holding of the court was that the order denying Allstate's motion to vacate the default judgment was affirmed without costs. The court's decision was based on the reasons stated in a related case, Dr. Robert E. Stoessel, Psychologist, P.C. v Allstate Ins. Co. (___ Misc 3d ___, 2010 NY Slip Op ______ [Appeal No. 2009-576 Q C], decided herewith).

Reported in New York Official Reports at Stoessel v Allstate Ins. Co. (2010 NY Slip Op 51245(U))

Stoessel v Allstate Ins. Co. (2010 NY Slip Op 51245(U)) [*1]

Stoessel v Allstate Ins. Co.

2010 NY Slip Op 51245(U) [28 Misc 3d 129(A)]

Decided on July 16, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-577 Q C.

Dr. Robert E. Stoessel, Psychologist, P.C., Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 2, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this commercial claims action to recover assigned first-party no-fault benefits in the sum of $1,130.69. Defendant failed to appear or answer, and a default judgment was entered against defendant in 2004. In 2008, defendant moved to vacate the default judgment, arguing, inter alia, that the “small claims part” [sic] of the Civil Court of the City of New York does not have subject matter jurisdiction over actions brought by an assignee, and that its motion to vacate the default judgment should be granted pursuant to CPLR 317 or 5015. The Civil Court denied defendant’s motion on the ground that it was untimely. The instant appeal by defendant ensued.

For the reasons stated in Dr. Robert E. Stoessel, Psychologist, P.C. v Allstate Ins. Co. (___ Misc 3d ___, 2010 NY Slip Op ______ [Appeal No. 2009-576 Q C], decided herewith), the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 16, 2010