March 5, 2021

Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))

Headnote

The relevant facts considered by the court were that Physiodynamics, LLC was seeking to recover assigned first-party no-fault benefits from Allstate Ins. Co. A judgment was entered against Allstate on October 4, 2017 for failing to appear or answer the complaint. Allstate subsequently moved to vacate the default judgment. The main issue decided by the court was whether Allstate had a reasonable excuse for the default and the existence of a meritorious defense, as required by CPLR 5015 (a) (1) for vacating a default judgment. The court held that Allstate did not sufficiently allege a reasonable excuse of law office failure and therefore, their motion to vacate the default judgment should have been denied. The holding of the case was that the order granting Allstate's motion to vacate the default judgment was reversed, and the motion was ultimately denied.

Reported in New York Official Reports at Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))

Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U)) [*1]

Physiodynamics, LLC v Allstate Ins. Co.

2021 NY Slip Op 50178(U) [70 Misc 3d 143(A)]

Decided on March 5, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1191 K C

Physiodynamics, LLC, as Assignee of Robert Utnick, Appellant,
against
Allstate Ins. Co., Respondent.

Gary Tsirelman, P.C. (Selina Chin and David Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered July 3, 2019. The order granted defendant’s motion to vacate a judgment of that court entered October 4, 2017 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered July 3, 2019, which granted defendant’s motion to vacate a judgment entered October 4, 2017 upon defendant’s failure to appear or answer the complaint.

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]). As plaintiff argues, defendant did not sufficiently allege its purported reasonable excuse of law office failure (see Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant’s motion should have been denied.

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 5, 2021