October 13, 2009

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 52114(U))

https://www.beynensonlaw.com/case-law/vitality-chiropractic-p-c-v-state-farm-mut-ins-co-2009-ny-slip-op52114u/

Court
Appellate Term, Second Department
Decided
October 13, 2009
Citation
2009 NY Slip Op 52114(U) · 25 Misc 3d 130(A)
Posture
Default or vacatur
Outcome
Insurer prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Defaults and vacatur
Cite as
Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., 25 Misc 3d 130(A), 2009 NY Slip Op 52114(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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.

Restoring an action more than one year after it was marked off the trial calendar requires a meritorious claim and a reasonable excuse for delay. The provider's no-fault action was marked off by consent, and the provider moved to restore it more than a year later. Applying 22 NYCRR 208.14 (c) and the cited restoration authorities, the Appellate Term, Second Department, found that the provider had not satisfied those requirements. It affirmed denial of restoration with leave to renew upon a proper showing and a reasonable excuse for the delay.

Reported in New York Official Reports at Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 52114(U))

[*1]
Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co.
2009 NY Slip Op 52114(U) [25 Misc 3d 130(A)]
Decided on October 13, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1624 Q C.
Vitality Chiropractic, P.C. a/a/o VALENTINA LEVCHENKO, Appellant,

against

State Farm Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2008. The order denied plaintiff’s motion to restore the case to the trial calendar.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties consented to have the case marked off the trial calendar in March 2007. In August 2008, plaintiff moved to restore the case. The Civil Court denied plaintiff’s motion “with leave to renew upon a proper showing/reasonable excuse as to why plaintiff did not move to restore within one year of the case being marked off the trial calendar.” The instant appeal by plaintiff ensued.

An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case (see Kaufman v Bauer, 8 Misc 3d 60 [App Term, 1st Dept 2005], revd on other grounds 36 AD3d 481 [2007]; see generally Uniform Rules for Trial Courts [22 NYCRR] § 208.14 [c]; Goldstein v Block, 7 AD3d 669 [2004]). Herein, plaintiff failed to satisfy the foregoing requirements. Accordingly, the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009

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