Reported in New York Official Reports at County Line Pharmacy v Geico Ins. Co. (2018 NY Slip Op 50573(U))
| County Line Pharmacy v Geico Ins. Co. |
| 2018 NY Slip Op 50573(U) [59 Misc 3d 138(A)] |
| Decided on April 13, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2015-53 Q C NO.
against
GEICO Insurance Company, Appellant.
| Active Care Med. Supply Corp. v Amica Mut. Ins. Co. |
| 2018 NY Slip Op 50500(U) [59 Misc 3d 135(A)] |
| Decided on April 6, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-955 K C
Active Care Medical Supply Corp., as Assignee of Tyrone, David, Respondent,
against
Amica Mutual Ins. Co., Appellant.
Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered August 12, 2015, deemed from a judgment of that court entered January 13, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to the August 12, 2015 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,819.12.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 12, 2015 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrine of res judicata, and plaintiff cross-moved for summary judgment. By order entered August 12, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. Defendant’s appeal from the order entered August 12, 2015 is deemed to be from the judgment entered pursuant thereto on January 13, 2016 (see CPLR 5512 [a]).
While defendant failed to include res judicata as an affirmative defense in its answer or [*2]move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer, defendant moved for summary judgment dismissing the complaint on the ground of res judicata based upon orders in a declaratory judgment action in the Supreme Court, Kings County. We note that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]). Plaintiff’s papers in the Civil Court failed to allege any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; J.K.M. Med. Care, P.C., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
“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 by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]). However, plaintiff herein was neither named nor served in the Supreme Court declaratory judgment action. Moreover, plaintiff was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. Thus, plaintiff had no full and fair opportunity to defend its interests in that action (see J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 54 Misc 3d 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate its entitlement to summary judgment dismissing the complaint based on res judicata.
With respect to plaintiff’s cross motion for summary judgment, although the affidavit of plaintiff’s employee, who stated that he had personally mailed the claim form to defendant, was sufficient to give rise to a presumption that the claim had been received by defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant rebutted the presumption of receipt with an affidavit by its claims representative, who described defendant’s procedures for receiving mail and stated that defendant had not received the bill at issue. Consequently, as defendant raised a triable issue of fact in opposition to plaintiff’s cross motion, the Civil Court should have denied plaintiff’s cross motion.
Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018
Reported in New York Official Reports at SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
Amos Weinberg, Esq., for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied plaintiff’s motion to vacate an oral order of that court issued July 31, 2013 dismissing the action based on plaintiff’s failure to proceed at trial.
ORDERED that the order entered April 3, 2014 is affirmed, without costs.
This action by a provider to recover assigned first-party no-fault benefits was commenced in 2002. In 2013, the case was scheduled for trial for the first time. On July 31, 2013, plaintiff’s counsel appeared only to seek an adjournment. Plaintiff concedes that it had no witness and was not ready to proceed. The court denied plaintiff’s request for an adjournment and dismissed the action pursuant to Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (b) (2). About seven months later, plaintiff moved to vacate that dismissal, which motion was denied by order entered April 3, 2014, from which plaintiff appeals.
Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal “it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action” (V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc [*2]3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain that burden here. Plaintiff has not demonstrated that the Civil Court’s denial of plaintiff’s request for an adjournment was an abuse of discretion (see Nieves v Tomonska, 306 AD2d 332 [2003]). Plaintiff did not show why it could not have been prepared to proceed on the day set for the trial of the then 11-year-old case, or why it had not attempted to obtain an adjournment in advance, or any other extenuating circumstances. Plaintiff also did not explain why it had waited seven months to move to vacate its default. In any event, plaintiff has not demonstrated that it has a meritorious cause of action.
Accordingly, the order entered April 3, 2014 is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018
Reported in New York Official Reports at Matter of Allstate Ins. Co. v Travelers Cos., Inc. (2018 NY Slip Op 02163)
| Matter of Allstate Ins. Co. v Travelers Cos., Inc. |
| 2018 NY Slip Op 02163 [159 AD3d 982] |
| March 28, 2018 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Allstate Insurance Company,
Appellant, v Travelers Companies, Inc., Respondent. |
Sweetbaum & Sweetbaum, Lake Success, NY (Marshall D. Sweetbaum and John S. McDonnell of counsel), for appellant.
Farber Brocks & Zane LLP, Garden City, NY (Tracy L. Frankel and William R. Brocks, Jr., of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 9, 2015, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated December 9, 2015, which denied the petition and granted the application of Travelers Companies, Inc., to confirm the award, and (2) a judgment of the same court entered March 24, 2016, which, upon the order, is in favor of Travelers Companies, Inc., and against the petitioner in the principal sum of $25,000.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to Travelers Companies, Inc.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
An individual insured by Allstate Insurance Company (hereinafter Allstate) and an individual insured by Travelers Companies, Inc. (hereinafter Travelers), were involved in a motor vehicle accident. In connection with that accident, Travelers paid its insured $75,000, representing coverage for basic economic loss and optional basic economic loss. Pursuant to Insurance Law § 5105 (a), Allstate reimbursed Travelers in the amount of $50,000 for the payment made to Travelers’ insured. Travelers then sought, through arbitration, to recover from Allstate the remainder of its payment to the insured. The matter was submitted to an arbitration panel. The arbitrators determined that Travelers was entitled to recoup the entire $75,000 payment to its insured and awarded Travelers $25,000.
Allstate filed a petition in the Supreme Court to vacate the arbitration award. [*2]Travelers opposed the petition, and requested that the award be confirmed. In an order dated December 9, 2015, the Supreme Court denied the petition and confirmed the award. The court then issued a judgment in favor of Travelers in the principal sum of $25,000. Allstate appeals.
To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105 [b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980 [2015]; Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933 [2014]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224).
Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102 [a], [b]; 11 NYCRR 65-1.1, 65-1.2).
Travelers’ remaining contentions either are without merit or need not be reached in light of our determination. Austin, J.P., Roman, Sgroi and Brathwaite Nelson, JJ., concur.
Reported in New York Official Reports at Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U))
| Laga v Allstate Ins. Co. |
| 2018 NY Slip Op 50416(U) [59 Misc 3d 129(A)] |
| Decided on March 23, 2018 |
| 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 March 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2015-1117 K C
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Karina Barska of counsel), for appellant. Peter C. Merani, P.C. (Josh Youngman, Eric Wahrburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 7, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. By order entered January 7, 2015, the Civil Court granted defendant’s motion.
Defendant’s moving papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 23, 2018
Reported in New York Official Reports at Arnica Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50415(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Sofya Petrukhin of counsel), for appellant. Peter C. Merani, P.C. (Brian Kratenstein, Eric Wahrburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 7, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover upon a claim for $167.04 and upon the allegedly unpaid balance of its remaining claims. Defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered January 7, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.
Plaintiff correctly argues that defendant’s moving papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s further contention, plaintiff failed to establish its prima facie entitlement to summary judgment on its cross motion, as plaintiff failed to establish either that defendant had failed to deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of the claims 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 defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 23, 2018
Reported in New York Official Reports at Acupuncture Now, P.C. v Hereford Ins. Co. (2018 NY Slip Op 50316(U))
| Acupuncture Now, P.C. v Hereford Ins. Co. |
| 2018 NY Slip Op 50316(U) [58 Misc 3d 161(A)] |
| Decided on March 9, 2018 |
| 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 March 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-998 Q C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Rubin & Nazarian (Melissa Brooks, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered January 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the insurance policy covering the vehicle allegedly involved in a June 10, 2011 motor vehicle accident had been cancelled prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.
The Civil Court held that defendant had demonstrated, as a matter of law, that the vehicle involved in the accident was a “for hire” vehicle and that, prior to the accident, the policy insuring the vehicle had been properly and validly cancelled in compliance with Vehicle and Traffic Law § 370 and 15 NYCRR § 34.11 (e). While the cancellation of the policy is governed by Vehicle and Traffic Law § 370, which requires the insurer to file a certificate of cancellation with the Commissioner of Motor Vehicles, the record reflects that defendant also sent its own cancellation notice in addition to complying with the statute. Plaintiff’s sole contention on appeal is that the sending of this additional notice “rendered the purported cancellation ineffective” (Travelers Prop. Cas. Corp. v Eagle Ins. Co., 273 AD2d 65, 66 [2000]). However, contrary to plaintiff’s argument, the May 10, 2011 notice at issue, which defendant sent informing the [*2]policyholder that it intended to cancel the policy effective June 6, 2011, did not render the cancellation of the policy ineffective (see American Tr. Ins. Co. v Hinds, 14 AD3d 378 [2005]).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 09, 2018
Reported in New York Official Reports at TAM Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 50315(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Medgine Bernadotte, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 29, 2014. The order, insofar as appealed from, upon denying defendant’s motion for summary dismissing the complaint, declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant’s] verification requests.”
ORDERED that the order, insofar as appealed from, is modified by striking the provision therein that, “At trial [plaintiff] has the burden to prove . . . whether it fully complied with [defendant’s] verification requests”; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff opposed the motion and annexed its verification responses to its opposition papers. Plaintiff appeals from so much of the order of the Civil Court entered September 29, 2014 as declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant’s] verification requests.”
Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the [*2]burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.”
We decline plaintiff’s request to make a CPLR 3212 (g) finding in plaintiff’s favor (see S & R Med., P.C. v GEICO Gen. Ins. Co., 52 Misc 3d 133[A], 2016 NY Slip Op 51013[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Accordingly, the order, insofar as appealed from, is modified by striking the provision therein that, at trial, plaintiff has the burden to prove “whether it fully complied with [defendant’s] verification requests.”
PESCE, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 09, 2018
Reported in New York Official Reports at Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))
| Premier Surgical Servs., P.C. v Allstate Ins. Co. |
| 2018 NY Slip Op 50273(U) [58 Misc 3d 160(A)] |
| Decided on February 23, 2018 |
| 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 February 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-475 K C
against
Allstate Ins. Co., Appellant.
Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 8, 2016. The order denied defendant’s motion to vacate a default judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to vacate a default judgment entered upon its failure to appear or answer.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]), and a court, in its discretion, may accept a claim of law office failure as an excuse (see CPLR 2005; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 904; Papandrea v Acevedo, 54 AD3d 915 [2008]). The affirmation submitted by defendant’s attorney in support of the motion did not provide a “detailed and credible” explanation of the law office failure that had caused the default (see Estrada v Selman, 130 AD3d 562, 562-563 [2015]; Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, [*2]1023 [2009]; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). Consequently, defendant’s conclusory claim of law office failure did not rise to the level of a reasonable excuse (see Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d at 1023; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 904; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784 [2008]; Piton v Cribb, 38 AD3d 741, 742 [2007]; Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 637 [2006]). In view of the foregoing, it is unnecessary to consider whether defendant demonstrated a meritorious defense to the action (see Levi v Levi, 46 AD3d 519, 520 [2007]). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant’s motion (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 784; Piton v Cribb, 38 AD3d at 742).
We note that, at oral argument, defendant=s attorney asserted that plaintiff had improperly served the summons and complaint on defendant at its Long Island office. However, since this argument was not raised in defendant=s brief, we decline to address it on appeal (see Pellescki v City of Rochester, 198 AD2d 762, 763 [1993]; see also McHale v Anthony, 41 AD3d 265, 266-267 [2007]; Crown Asset Mgt., LLC v Ferreri, 48 Misc 3d 132[A], 2015 NY Slip Op 51064[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 23, 2018
Reported in New York Official Reports at Thomas J. Tesi, M.S., D.C., P.C. v Hereford Ins. Co. (2018 NY Slip Op 50252(U))
| Thomas J. Tesi, M.S., D.C., P.C. v Hereford Ins. Co. |
| 2018 NY Slip Op 50252(U) [58 Misc 3d 159(A)] |
| Decided on February 16, 2018 |
| 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 February 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1744 K C
against
Hereford Insurance Co., Appellant.
Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber, Esq.), for appellant. Law Office of Marina Josovic, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 8, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross 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).
Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see 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]).
However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).
Defendant’s remaining contentions lack merit.
Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment [*2]is denied.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 16, 2018