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January 5, 2010

Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-philadelphia-indem-ins-co-2010-ny-slip-op00138/

Court
Appellate Division, Second Department
Decided
January 5, 2010
Citation
2010 NY Slip Op 00138 · 69 AD3d 613
Posture
Default or vacatur
Outcome
Provider prevailed
Later treatment
Contrasted (cf., but see) in 1 and followed in 2 later decisions (see Cited by)
Issues
Defaults and vacatur Policy issues
Legal questions
Vacating a default: excuse and defense · Proof of mailing · Service and jurisdiction over the insurer · Exhaustion of policy limits (see the maps)
Cite as
Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 (2d Dept 2010)

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 justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense. The provider obtained a default judgment after service through the Insurance Department under Insurance Law § 1212. The insurer's claims examiner reported no computer record of the summons, complaint or bill but showed no knowledge of the receiving office's handling procedures. That proof did not establish clerical error or rebut receipt of the billing forms. The insurer's records also showed sufficient policy funds when the bill was received, implicating 11 NYCRR 65-3.15. Applying CPLR 5015 (a) (1), the Appellate Division, Second Department, reversed the order, insofar as appealed from, denied vacatur and remitted for determination of the provider's contempt motion on the merits.

Reported in New York Official Reports at Westchester Med. Ctr. v Philadelphia Indem. Ins. Co. (2010 NY Slip Op 00138)

Westchester Med. Ctr. v Philadelphia Indem. Ins. Co.
2010 NY Slip Op 00138 [69 AD3d 613]
January 5, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 10, 2010
Westchester Medical Center, as Assignee of Bernard Porter, Appellant,
v
Philadelphia Indemnity Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Callan, Koster, Brady & Brennan, LLP, Uniondale, N.Y. (Michael P. Kandler and Eric L. Shoikhetman of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered March 6, 2009, as granted the defendant’s motion to vacate a clerk’s judgment of the same court entered September 4, 2008, which, upon the defendant’s failure to appear or answer the complaint, was in its favor and against the defendant in the principal sum of $19,325.61 and, in effect, denied, as academic, its motion to hold the defendant in contempt.

Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, the defendant’s motion to vacate the clerk’s judgment is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of the plaintiff’s motion to hold the defendant in contempt.

A defendant seeking to vacate a judgment entered upon its default in appearing and answering the complaint must demonstrate a reasonable excuse for its delay in appearing and answering, as well as the existence of a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673 [2008]). The Special Deputy Superintendent of the State of New York Insurance Department acknowledged service upon him of the summons and complaint in this matter and notified the defendant, through Debra Sutton at its Pennsylvania office, of service as effected above (see Insurance Law § 1212; Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). In response, the defendant failed to meet its burden of showing a reasonable excuse for its failure to timely appear or answer the complaint and the existence of a meritorious defense. The affidavit of a senior claims examiner employed in the defendant’s Texas office averred that there was no record of the summons and complaint in the defendant’s computer system, but failed to demonstrate any knowledge of the office procedures employed in the handling of a summons and complaint received at the defendant’s Pennsylvania office. Thus, that affidavit was insufficient to show that the failure to timely appear and answer was due to a clerical error which caused the summons and complaint to be overlooked (see Montefiore Med. Ctr. v Auto One Ins. Co., [*2]57 AD3d at 959; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544 [2008]).

Furthermore, the defendant failed to set forth facts from an individual with personal knowledge sufficient to demonstrate the existence of a meritorious defense. The affidavit of the plaintiff’s biller showed that the forms N-F5 and UB-92 relating to this matter were mailed on April 23, 2008, and signed for by the defendant on April 28, 2008. At that time, according to the defendant’s own records, there were still sufficient funds remaining under the policy to pay this bill (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). In response, the defendant offered only the same aforementioned affidavit, which also averred that there was no record of the bill in question in the defendant’s computer system. This was insufficient for a similar reason; that is, the affiant failed to show any knowledge of the office procedures employed in the handling of billing forms received at the defendant’s Pennsylvania office (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 968; see generally New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]; Peacock v Kalikow, 239 AD2d 188, 190 [1997]; cf. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Accordingly, the defendant’s motion to vacate the judgment entered upon its failure to appear or answer should have been denied.

The Supreme Court, in effect, denied, as academic, the plaintiff’s motion to hold the defendant in contempt. In light of our determination, we remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the plaintiff’s motion. Fisher, J.P., Florio, Angiolillo, Eng and Roman, JJ., concur.

Legal questions (4)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Vacating a default: excuse and defense

Open the full map

Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?

This decision: Relief denied because the party showed neither a reasonable excuse nor a potentially meritorious defense or claim

Reversed vacatur because the insurer's out-of-state claims examiner, lacking knowledge of the receiving office's procedures, showed neither a clerical-error excuse for nonreceipt nor a meritorious defense.

  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 127
  • Trial courtsTrial 9
2022, Appellate Division: 1 decision (1 No reasonable excuse)2019, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2018, Appellate Division: 1 decision (1 Default excused)2017, Appellate Division: 1 decision (1 No meritorious defense)2014, Appellate Division: 1 decision (1 Default excused)2012, Appellate Division: 1 decision (1 Default excused)2011, Appellate Division: 1 decision (1 Default excused)2010, Appellate Division: 1 decision (1 Neither shown)2009, Appellate Division: 3 decisions (2 Default excused, 1 No meritorious defense)2008, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2007, Appellate Division: 3 decisions (3 Default excused)2006, Appellate Division: 7 decisions (7 Default excused)2005, Appellate Division: 3 decisions (1 Default excused, 1 No meritorious defense, 1 Neither shown)2004, Appellate Division: 4 decisions (2 Default excused, 1 No reasonable excuse, 1 Neither shown)2003, Appellate Division: 1 decision (1 No reasonable excuse)2026, Appellate Division: 1 decision (1 No reasonable excuse)2015, Appellate Division: 1 decision (1 Neither shown)2023, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2022, Appellate Term: 4 decisions (3 Default excused, 1 No reasonable excuse)2021, Appellate Term: 6 decisions (3 Default excused, 2 No reasonable excuse, 1 Neither shown)2020, Appellate Term: 10 decisions (2 Default excused, 7 No reasonable excuse, 1 Hearing or remittal)2019, Appellate Term: 18 decisions (5 Default excused, 11 No reasonable excuse, 2 No meritorious defense)2018, Appellate Term: 4 decisions (1 Default excused, 1 No reasonable excuse, 2 Neither shown)2017, Appellate Term: 14 decisions (5 Default excused, 6 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2016, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 Neither shown)2015, Appellate Term: 3 decisions (1 No reasonable excuse, 2 Neither shown)2014, Appellate Term: 2 decisions (1 No reasonable excuse, 1 No meritorious defense)2013, Appellate Term: 1 decision (1 No meritorious defense)2012, Appellate Term: 8 decisions (2 Default excused, 5 No reasonable excuse, 1 Neither shown)2011, Appellate Term: 5 decisions (1 Default excused, 2 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2010, Appellate Term: 12 decisions (4 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 3 Neither shown)2009, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 No meritorious defense)2008, Appellate Term: 7 decisions (1 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2007, Appellate Term: 1 decision (1 No reasonable excuse)2006, Appellate Term: 5 decisions (3 Default excused, 1 No meritorious defense, 1 Neither shown)2005, Appellate Term: 2 decisions (2 Default excused)2004, Appellate Term: 4 decisions (1 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2024, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2025, Appellate Term: 3 decisions (3 Default excused)2026, Appellate Term: 3 decisions (3 No reasonable excuse)2003, Appellate Term: 1 decision (1 Neither shown)2023, Trial courts: 1 decision (1 No reasonable excuse)2011, Trial courts: 1 decision (1 No reasonable excuse)2009, Trial courts: 1 decision (1 Default excused)2007, Trial courts: 1 decision (1 Default excused)2004, Trial courts: 1 decision (1 No meritorious defense)2026, Trial courts: 1 decision (1 Default excused)2006, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2024, Trial courts: 1 decision (1 Default excused)This decision
20052010201520202025
Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 21 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held the biller's affidavit showed the claim forms were mailed and signed for, and the insurer's no-record affidavit failed to rebut receipt because the affiant lacked knowledge of the receiving office's procedures.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,214
  • Trial courtsTrial 148
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 6 decisions (5 Insurer proved mailing, 1 Triable issue on mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 81 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 74 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 10 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 103 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 68 decisions (55 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 110 decisions (87 Insurer proved mailing, 14 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 78 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 28 decisions (13 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 75 decisions (6 Insurer proved mailing, 19 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 4 decisions (3 Insurer proved mailing, 1 Provider proved mailing)2026, Appellate Term: 8 decisions (3 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 5 decisions (2 Insurer proved mailing, 2 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 18 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 3 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 5 decisions (1 Insurer proved mailing, 2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 15 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 1 Provider proved mailing, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 7 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itDistinguished or limited

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Insurer validly served and subject to the court's jurisdiction, or service defect cured/excused (rules on the question, but another ground decided the case)

Treated service through the Superintendent under Insurance Law § 1212, who acknowledged service and notified the insurer's Pennsylvania office, as established, so the insurer's no-record affidavit did not excuse its default.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 108
  • Trial courtsTrial 15
2013, Appellate Division: 1 decision (1 Objection waived/not required)2010, Appellate Division: 1 decision (1 Jurisdiction upheld)2008, Appellate Division: 2 decisions (2 Jurisdiction upheld)2006, Appellate Division: 1 decision (1 Jurisdiction upheld)2003, Appellate Division: 1 decision (1 Jurisdiction upheld)2022, Appellate Term: 7 decisions (1 Jurisdiction upheld, 5 Service defective, 1 No jurisdiction over insurer)2021, Appellate Term: 4 decisions (2 Service defective, 1 No jurisdiction over insurer, 1 Hearing or discovery needed)2020, Appellate Term: 8 decisions (2 Jurisdiction upheld, 4 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2019, Appellate Term: 53 decisions (4 Jurisdiction upheld, 6 Service defective, 42 No jurisdiction over insurer, 1 Objection waived/not required)2018, Appellate Term: 1 decision (1 No jurisdiction over insurer)2017, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 Service defective)2016, Appellate Term: 1 decision (1 Jurisdiction upheld)2015, Appellate Term: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2014, Appellate Term: 4 decisions (1 Jurisdiction upheld, 3 No jurisdiction over insurer)2013, Appellate Term: 4 decisions (1 Jurisdiction upheld, 1 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2011, Appellate Term: 3 decisions (3 Service defective)2010, Appellate Term: 5 decisions (2 Jurisdiction upheld, 3 No jurisdiction over insurer)2009, Appellate Term: 2 decisions (2 Jurisdiction upheld)2007, Appellate Term: 2 decisions (2 Service defective)2006, Appellate Term: 1 decision (1 Jurisdiction upheld)2004, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 No jurisdiction over insurer)2023, Appellate Term: 1 decision (1 Jurisdiction upheld)2025, Appellate Term: 2 decisions (2 Hearing or discovery needed)2026, Appellate Term: 2 decisions (2 Jurisdiction upheld)2005, Appellate Term: 1 decision (1 Service defective)2024, Appellate Term: 1 decision (1 Jurisdiction upheld)2023, Trial courts: 1 decision (1 Jurisdiction upheld)2021, Trial courts: 1 decision (1 Service defective)2012, Trial courts: 1 decision (1 Jurisdiction upheld)2009, Trial courts: 1 decision (1 Jurisdiction upheld)2008, Trial courts: 2 decisions (2 Service defective)2005, Trial courts: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2004, Trial courts: 1 decision (1 Jurisdiction upheld)2003, Trial courts: 1 decision (1 Service defective)2026, Trial courts: 4 decisions (1 Jurisdiction upheld, 2 Service defective, 1 No jurisdiction over insurer)2025, Trial courts: 1 decision (1 Service defective)This decision
20052010201520202025
Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Exhaustion of policy limits

Open the full map

Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?

This decision: Exhaustion defense fails on the law or the insurer's own records: coverage remained when this claim became payable (rules on the question, but another ground decided the case)

In denying vacatur of the insurer's default, found that by the insurer's own records sufficient funds remained under the policy to pay the bill when it was received, so no meritorious defense was shown.

  • Appellate DivisionApp Div 17
  • Appellate TermApp Term 42
  • Trial courtsTrial 9
2021, Appellate Division: 1 decision (1 Exhaustion not proved)2011, Appellate Division: 3 decisions (1 Triable issue / hearing, 2 Defense not heard)2010, Appellate Division: 2 decisions (1 Limits exhausted, 1 Coverage left when due)2006, Appellate Division: 3 decisions (2 Limits exhausted, 1 Triable issue / hearing)2005, Appellate Division: 3 decisions (1 Limits exhausted, 2 Triable issue / hearing)2004, Appellate Division: 3 decisions (2 Limits exhausted, 1 Triable issue / hearing)2025, Appellate Division: 1 decision (1 Limits exhausted)2018, Appellate Division: 1 decision (1 Limits exhausted)2022, Appellate Term: 1 decision (1 Exhaustion not proved)2020, Appellate Term: 3 decisions (1 Limits exhausted, 1 Coverage left when due, 1 Exhaustion not proved)2019, Appellate Term: 3 decisions (3 Exhaustion not proved)2018, Appellate Term: 5 decisions (1 Limits exhausted, 1 Coverage left when due, 3 Exhaustion not proved)2017, Appellate Term: 6 decisions (2 Limits exhausted, 1 Coverage left when due, 3 Exhaustion not proved)2016, Appellate Term: 2 decisions (1 Limits exhausted, 1 Triable issue / hearing)2013, Appellate Term: 1 decision (1 Limits exhausted)2009, Appellate Term: 1 decision (1 Exhaustion not proved)2006, Appellate Term: 1 decision (1 Triable issue / hearing)2023, Appellate Term: 1 decision (1 Exhaustion not proved)2024, Appellate Term: 7 decisions (7 Exhaustion not proved)2025, Appellate Term: 2 decisions (1 Coverage left when due, 1 Exhaustion not proved)2026, Appellate Term: 7 decisions (5 Exhaustion not proved, 2 Triable issue / hearing)2012, Appellate Term: 1 decision (1 Exhaustion not proved)2021, Appellate Term: 1 decision (1 Exhaustion not proved)2019, Trial courts: 2 decisions (1 Limits exhausted, 1 Exhaustion not proved)2017, Trial courts: 1 decision (1 Defense not heard)2007, Trial courts: 1 decision (1 Limits exhausted)2023, Trial courts: 1 decision (1 Exhaustion not proved)2024, Trial courts: 1 decision (1 Exhaustion not proved)2026, Trial courts: 1 decision (1 Exhaustion not proved)2016, Trial courts: 1 decision (1 Limits exhausted)2018, Trial courts: 1 decision (1 Exhaustion not proved)This decision
20052010201520202025
Limits exhaustedCoverage left when dueExhaustion not provedTriable issue / hearingDefense not heardThis decision

Of the 68 decisions on this question in the Second Department courts and the Court of Appeals, 5 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596) FollowedThe insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service.
  • New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 04260)The insurer obtained default vacatur under CPLR 317 by showing untimely actual notice of the summons and meritorious defenses.
  • Hospital for Joint Diseases v Lincoln Gen. Ins. Co. (2008 NY Slip Op 07619) Contrasted (cf., but see)The insurer obtained vacatur of its default by showing that it lacked actual notice in time to defend and might have a meritorious defense.
  • St. Barnabas Hosp. v American Tr. Ins. Co. (2008 NY Slip Op 09585)The insurer raised a triable issue whether the provider timely complied with its verification demand, defeating the provider's summary judgment motion.
  • New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa. (2005 NY Slip Op 01691)The insurer failed to establish a meritorious defense required to vacate the provider's default judgment.
  • St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) Contrasted (cf., but see)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Cited by

A label shows how the later decision treated this one.

  • Nursing Personnel Homecare v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50450(U)) Contrasted (cf., but see)The insurer established lack of actual notice in time to defend and a meritorious policy-cancellation defense, warranting vacatur under CPLR 317.
  • Medcare Supply, Inc. v Farmers New Century Ins. Co. (2014 NY Slip Op 51752(U)) FollowedThe insurer failed to establish untimely receipt of the provider's claim, and a stamped mailing certificate raised a factual issue.
  • ALFA Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50942(U)) FollowedThe insurer failed to provide a reasonable excuse for its two-year delay in answering because its affidavit lacked personal knowledge.

Similar decisions

  • Westchester Med. Ctr. v Allstate Ins. Co. (2011 NY Slip Op 00377)The insurer established a reasonable clerical excuse for its brief default and a potentially meritorious defense.
  • Westchester Med. Ctr. v Hartford Cas. Ins. Co. (2009 NY Slip Op 00528)The insurers showed an excusable default and a potentially meritorious defense based on partial exhaustion of policy limits.
  • New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)The insurer's clerical-oversight affidavit and potentially meritorious defense justified vacating its default judgment.
  • Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co. (2010 NY Slip Op 52008(U))The insurer failed to reasonably explain its failure to refile opposition papers after the clerk identified the filing error.
  • Wyckoff Hgts. Med. Ctr. v Merchants Ins. Co. of N.H. (2003 NY Slip Op 19994)The insurer's intentional default was not excusable because it sought vacatur only after the provider moved for contempt.
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