April 11, 2017

Maximum Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50552(U))

Headnote

The main issue in this case was whether the trial court properly denied the plaintiff's motion for a default judgment and granted the defendant's cross motion to compel the plaintiff to accept an untimely answer. The court considered the defendant's argument that they had a reasonable excuse for the untimely answer and a potentially meritorious defense, as they had not received the summons and complaint and may have a viable defense based on a lack of medical necessity. The court ultimately held that the branch of the defendant's cross motion seeking to compel the plaintiff to accept the untimely answer was properly granted, as the defendant demonstrated both a reasonable excuse and a potentially meritorious defense. As a result, the order was affirmed.

Reported in New York Official Reports at Maximum Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50552(U))

Maximum Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50552(U)) [*1]

Maximum Chiropractic, P.C. v Allstate Ins. Co.

2017 NY Slip Op 50552(U) [55 Misc 3d 139(A)]

Decided on April 11, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2017

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-2194 K C

Maximum Chiropractic, P.C., as Assignee of RAMON DUVERGE, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered September 4, 2014. The order, insofar as appealed from, denied plaintiff’s motion to enter a default judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to accept an untimely answer.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant failed to timely answer. Plaintiff subsequently moved for leave to enter a default judgment pursuant to CPLR 3215, and defendant cross-moved to, among other things, compel plaintiff to accept an untimely answer previously served. Plaintiff appeals from so much of an order as denied its motion and granted that branch of defendant’s cross motion. We affirm.

Contrary to plaintiff’s argument, the branch of defendant’s cross motion seeking to compel plaintiff to accept the untimely answer was properly granted, as defendant demonstrated both a reasonable excuse and a potentially meritorious defense (see Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762 [2010]). The documents and detailed affidavits submitted by defendant sufficiently established that defendant had not received the summons and complaint and that defendant may have a viable defense based on a lack of medical necessity.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: April 11, 2017