April 6, 2018

SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))

Headnote

The court considered the fact that the action to recover first-party no-fault benefits was commenced in 2002, and that the case was scheduled for trial for the first time in 2013. Plaintiff's counsel appeared on July 31, 2013 seeking an adjournment, but the court denied the request and dismissed the action. The main issue decided was whether the dismissal of the action could be vacated, and the court held that the plaintiff failed to demonstrate a reasonable excuse for the default and a meritorious cause of action. The court affirmed the denial of plaintiff's motion to vacate the dismissal.

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

SZ Medical, P.C., as Assignee of Mahaisri Singh, Appellant,
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