April 26, 2011

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50778(U))

https://www.beynensonlaw.com/case-law/valentin-avanessov-m-d-p-c-v-progressive-ins-co-2011-ny-slip-op50778u/

Court: Appellate Term, Second Department
Decided: April 26, 2011
Citation: 2011 NY Slip Op 50778(U) · 31 Misc 3d 139(A)
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Defaults and vacatur

Cite as

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139(A), 2011 NY Slip Op 50778(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

A provider seeking default judgment more than a year after default must show a reasonable excuse for delay and a meritorious complaint. The Appellate Term, Second Department, reversed the order, denied the provider's motion for a default judgment, and granted the insurer's cross motion to dismiss under CPLR 3215 (c). The provider moved approximately two years and four months after serving the summons with endorsed complaint, and offered no opposition to the insurer's cross motion. The Civil Court had conditionally allowed default judgment unless the insurer answered within 30 days. Reviewing the motion papers, the appellate court found dismissal as abandoned required under CPLR 3215 (c).

Reported in New York Official Reports at Valentin Avanessov, M.D., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50778(U))

[*1]

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co.

2011 NY Slip Op 50778(U) [31 Misc 3d 139(A)]

Decided on April 26, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
.

Valentin Avanessov, M.D., P.C. as Assignee of PAVEL NADGLOWSKI, Respondent, NO~ 2010-574 K C
against
Progressive Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered February 18, 2010. The order granted plaintiff’s motion for the entry of a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order is reversed, without costs, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by the service on October 17, 2006 of a summons with endorsed complaint. Defendant defaulted. Approximately two years and four months later, in February 2009, plaintiff moved for the entry of a default judgment. Defendant opposed the motion on the ground that it was supported by insufficient proof, and cross-moved to dismiss pursuant to CPLR 3215 (c). Plaintiff failed to offer any opposition to defendant’s cross motion. By order entered February 18, 2010, the Civil Court granted plaintiff’s motion to enter a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corely, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a review of the motion papers, we find that dismissal of [*2]the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff’s motion for the entry of a default judgment is denied, and defendant’s cross motion to dismiss the complaint is granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 26, 2011

Cited by

A label shows how the later decision treated this one.

Neurology Group v New York City Tr. Auth. (2012 NY Slip Op 50563(U)) FollowedThe provider's action was dismissed as abandoned because it failed to justify a delay exceeding 12 years or show meritorious claims.
Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U)) FollowedThe provider failed to excuse its seven-year delay in seeking a default judgment or show a meritorious claim.

Similar decisions

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U))The provider's action was dismissed as abandoned because it sought a default judgment after one year without a reasonable excuse.
Golden Age Med. Supply, Inc. v Windsor Ins. Co. (2013 NY Slip Op 52032(U))The provider's unsubstantiated claim of law office failure did not excuse its four-year delay in seeking a default judgment.
Doctor Goldshteyn Chiropractic, P.C. v Empire Fire & Mar. Ins. Co. (2021 NY Slip Op 50722(U))A default judgment under CPLR 3215 (i) may be entered only in a pending action.
Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51772(U))The insurer established an excusable law office default and a meritorious medical necessity defense warranting vacatur.
Chi Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 51496(U))A provider that fails to seek a default judgment within one year must show a reasonable excuse and a meritorious complaint to avoid abandonment.