February 14, 2006

A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50243(U))

Headnote

The court considered a motion to vacate a default judgment entered against Allstate Insurance Company in an action to recover first-party no-fault benefits for medical services rendered to the plaintiffs' assignor. The main issues decided were whether the defendant established a reasonable excuse for the default and a meritorious defense to the action. The court held that the lower court had improvidently exercised its discretion in granting defendant's motion to vacate the default judgment. It was determined that the defendant did not show a reasonable excuse for the default and failed to sufficiently establish a meritorious defense. The court found that the defendant's moving papers did not include an affidavit by someone with personal knowledge of the underlying circumstances, and therefore did not meet the necessary burden of proof.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50243(U))

A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50243(U)) [*1]

A.B. Med. Servs. PLLC v Allstate Ins. Co.

2006 NY Slip Op 50243(U) [11 Misc 3d 128(A)]

Decided on February 14, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2004-1588 K C.

A.B. Medical Services PLLC D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. a/a/o NAIKA GOUSSE, Appellants, —
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered September 14, 2004. The order granted defendant’s motion to vacate a default judgment entered against it.

Order unanimously reversed without costs and defendant’s motion to vacate the default judgment denied.

Notwithstanding the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment. In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, defendant was required to establish both a reasonable excuse for the default and a meritorious defense to the action.

In its moving papers, defendant acknowledged having been served with the pleadings, and alleged in an affirmation by outside counsel and an affidavit by defendant’s claims handler, that the pleadings were sent by mail courier to another outside counsel, who failed to receive them. Defendant’s moving papers, however, did not include an affidavit by someone with [*2]personal knowledge of the underlying circumstances. Accordingly, defendant did not show a reasonable excuse for the default. Furthermore, defendant failed to sufficiently establish a meritorious defense. While the denial of claim forms which were submitted with the motion papers included the reasons for the denial of the claims, any assertions in defendant’s motion papers regarding the reasons for the denials were based solely upon the claim denial forms’ conclusory statements to that effect. There was no affidavit by anyone with personal
knowledge of the facts, no documentary proof of any requests for examinations under oath, and no proof that any such requests were mailed.
Decision Date: February 14, 2006