Reported in New York Official Reports at Quality Health Supply Corp. v Hertz Co. (2020 NY Slip Op 50996(U))
[*1]| Quality Health Supply Corp. v Hertz Co. |
| 2020 NY Slip Op 50996(U) [68 Misc 3d 131(A)] |
| Decided on August 28, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1968 K C
against
Hertz Co., Respondent.
The Rybak Firm, PLLC (Damin Toell and Karina Barska of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Deena Khalifa Sarah Cohenson of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 6, 2018. The order granted defendant’s motion to amend the pleadings and to dismiss the complaint on the ground of res judicata, and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion seeking to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied; as so modified, the order is affirmed, without costs.
Plaintiff Quality Health Supply Corp. (Quality Health) commenced this action against “Hertz Co.” to recover assigned first-party no-fault benefits for services provided to plaintiff’s assignor, who had allegedly been injured in an accident on July 7, 2015. Prior to the commencement of this action, “Hertz Vehicles, LLC” had brought a declaratory judgment action in the Supreme Court, New York County, against Quality Health and its assignor herein, among other parties, pertaining to the July 7, 2015 accident, and had moved in the Supreme Court for a default judgment against Quality Health and its assignor. In an order entered August 4, 2016, the Supreme Court, upon granting an unopposed motion by Hertz Vehicles, LLC, declared that Hertz Vehicles, LLC was not obligated to pay claims for reimbursement submitted by Quality Health and its assignor. Hertz Co. thereafter moved in the Civil Court for an order pursuant to CPLR 3025 (c), “amending the named defendant in this action to the proper party, ‘Hertz Vehicles, LLC.’ ” Relying upon the Supreme Court’s order, Hertz Co. sought the further relief in the Civil Court of dismissing the complaint on the ground that the present action is barred by the doctrine of res judicata. Plaintiff cross-moved for summary judgment and opposed defendant’s motion. Plaintiff appeals from an order of the Civil Court entered February 6, 2018 which granted defendant’s motion and denied plaintiff’s cross motion.
CPLR 3025 (c) provides that “the court may permit pleadings to be amended before or [*2]after judgment to conform them to the evidence.” Upon a review of the record, we find that the Civil Court improperly exercised its discretion in granting the branch of defendant’s motion seeking to amend the pleadings, as defendant failed to proffer any evidence to support the conclusory statement by its claim representative that Hertz Vehicles, LLC is “the proper party.” Defendant also sought an order dismissing the complaint on the ground of res judicata. “Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as defendant failed to establish that plaintiff had sued the wrong party, there is no demonstration that there had been “a final adjudication of [the present claims] on the merits” (Ciraldo, 140 AD3d at 913; Matter of Hunter, 4 NY3d 260; Schuylkill Fuel Corp., 50 NY 304) in the Supreme Court, and, thus, there is no basis for preclusion, under the doctrine of res judicata, of the Civil Court action against Hertz Co. Consequently, Hertz Co.’s motion should have been denied.
With respect to plaintiff’s cross motion for summary judgment, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its motion failed to establish either that the claims at issue had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that Hertz Co.’s motion to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020Matter of Advanced Orthopaedics PLLC v Unitrin Advantage Ins. Co. (2020 NY Slip Op 51017(U))
Reported in New York Official Reports at Matter of Advanced Orthopaedics PLLC v Unitrin Advantage Ins. Co. (2020 NY Slip Op 51017(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
Unitrin Advantage Insurance Company, Respondent.
Law Offices of Jonathan B. Seplowe, Esq. (Alan M. Elis of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Timothy R. Bishop of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 11, 2019. The order denied a petition to vacate a master arbitrator’s award, dated September 12, 2018, in a CPLR 7511 proceeding. The appeal was taken to the Appellate Term, Second, Eleventh and Thirteenth Judicial Districts and was transferred to this court by a decision and order on motion of that court dated January 23, 2020 (2020 NY Slip Op 61944[U]).
ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated September 12, 2018, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claim to recover assigned first-party no-fault benefits. The District Court denied the petition.
We initially note that, contrary to respondent’s contention, it is well settled that arbitration under the no-fault law is compulsory (see Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695 [2019]; Barry Rubin, M.D., P.C. v Met Life Auto & Home Ins. Co., 26 Misc 3d 138[A], 2010 NY Slip Op 50223[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). “A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981])” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Applying this standard, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). Consequently, the Civil Court properly denied the petition to vacate the master arbitrator’s award.However, upon [*2]denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).
Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator’s award.
We note that a proceeding to vacate or to confirm an arbitrator’s award is a special proceeding brought pursuant to CPLR article 4 and should, therefore, terminate in a judgment rather than an order (see CPLR 411).
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 27, 2020
Reported in New York Official Reports at Excel Surgery Ctr., LLC v MVAIC (2020 NY Slip Op 51016(U))
[*1]| Excel Surgery Ctr., LLC v MVAIC |
| 2020 NY Slip Op 51016(U) [68 Misc 3d 134(A)] |
| Decided on August 27, 2020 |
| 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 August 27, 2020
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2019-706 S C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Tracy Bader Pollack and Jeffrey Kadushin of counsel), for Appellant. Gabriel & Shapiro, LLC (Justin Rosenbaum of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated March 18, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the District Court which denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and granted plaintiff’s cross motion for summary judgment.
Defendant’s moving papers demonstrated, prima facie, that plaintiff’s assignor had failed to appear for either of two duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that upon receipt of the claim at issue, defendant timely mailed the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), which denied the claim on that ground. Plaintiff failed to raise a triable issue of fact in opposition. Defendant’s motion for summary judgment dismissing the complaint should therefore have been granted and plaintiff’s cross motion should have been denied.
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 27, 2020
Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co. (2020 NY Slip Op 50946(U))Reported in New York Official Reports at Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co. (2020 NY Slip Op 50946(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Pearl Holding Group Managing General Agent for Ocean Harbor Casualty Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gallo, Vitucci & Klar, LLP (Richard E. Weber and Marissa Dunderdale of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered March 18, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida and that, pursuant to Florida law, there was a lack of coverage due to the valid rescission of the automobile insurance policy and the refund of the insured’s premiums. Plaintiff appeals from an order of the Civil Court entered March 18, 2019 which denied plaintiff’s motion and granted defendant’s cross motion.
It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policyholder had applied for automobile insurance, he did not reside at the Florida address listed on his insurance application, and that the insured vehicle was not being garaged in Florida [*2]for the period stated on the application. Subsequent to defendant’s investigation, it initiated a declaratory judgment action in Florida Circuit Court in Broward County in which a final judgment was entered declaring the subject policy null and void based on the applicant’s misrepresentations in procuring the policy. Defendant then rescinded the policy ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in the application for insurance.
It is undisputed by the parties that Florida law applies. Inasmuch as defendant’s cross motion papers demonstrated that a rescission notice was sent to the insured, and that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]).
Plaintiff’s remaining arguments are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50944(U))
| Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50944(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 August 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-2059 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered August 8, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50943(U))
| A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50943(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 August 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1955 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, P.C. (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 31, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50942(U))
| A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50942(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 August 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1954 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 29, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50941(U))
| Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50941(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 August 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1951 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 31, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50940(U))
| Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50940(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 August 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1947 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 29, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.
The process server’s affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 7, 2020