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August 7, 2020

Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))

https://www.beynensonlaw.com/case-law/milky-way-acupuncture-p-c-v-allstate-ins-co-2020-ny-slip-op50935u/

Court
Appellate Term, Second Department
Decided
August 7, 2020
Citation
2020 NY Slip Op 50935(U)
Posture
Default or vacatur
Outcome
Provider prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Defaults and vacatur Jurisdiction and service
Legal questions
Vacating a default: excuse and defense · Service and jurisdiction over the insurer (see the maps)
Cite as
Milky Way Acupuncture, P.C. v Allstate Ins. Co., 2020 NY Slip Op 50935(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to establish an excusable default, and the provider's default judgment remained in place. The process server's affidavits supplied prima facie proof of service under CPLR 311 (a) (1) on general agents authorized to accept process for the insurer. Vacatur under CPLR 5015 (a) (1) required both a reasonable excuse and a potentially meritorious defense. Following Santomauro v Allstate Ins. Co., the insurer's employee affidavit, virtually identical to the affidavit there, failed to establish an excusable default. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branches seeking to vacate the default judgment and compel acceptance of the insurer's answer.

Reported in New York Official Reports at Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))

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

Milky Way Acupuncture, P.C., as Assignee of Paulino, Elvin Veras, Appellant,

against

Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

The process server’s affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 7, 2020

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Vacating a default: excuse and defense

Open the full map

Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?

This decision: Relief denied because no reasonable excuse (or, under CPLR 317, no lack of actual notice) was shown; meritorious defense accepted or not reached

Reversed vacatur because the insurer's employee affidavit, virtually identical to one previously found deficient, did not establish a reasonable excuse rebutting proper service on its authorized general agents.

  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 127
  • Trial courtsTrial 9
2022, Appellate Division: 1 decision (1 No reasonable excuse)2019, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2018, Appellate Division: 1 decision (1 Default excused)2017, Appellate Division: 1 decision (1 No meritorious defense)2014, Appellate Division: 1 decision (1 Default excused)2012, Appellate Division: 1 decision (1 Default excused)2011, Appellate Division: 1 decision (1 Default excused)2010, Appellate Division: 1 decision (1 Neither shown)2009, Appellate Division: 3 decisions (2 Default excused, 1 No meritorious defense)2008, Appellate Division: 2 decisions (1 Default excused, 1 No reasonable excuse)2007, Appellate Division: 3 decisions (3 Default excused)2006, Appellate Division: 7 decisions (7 Default excused)2005, Appellate Division: 3 decisions (1 Default excused, 1 No meritorious defense, 1 Neither shown)2004, Appellate Division: 4 decisions (2 Default excused, 1 No reasonable excuse, 1 Neither shown)2003, Appellate Division: 1 decision (1 No reasonable excuse)2026, Appellate Division: 1 decision (1 No reasonable excuse)2015, Appellate Division: 1 decision (1 Neither shown)2023, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2022, Appellate Term: 4 decisions (3 Default excused, 1 No reasonable excuse)2021, Appellate Term: 6 decisions (3 Default excused, 2 No reasonable excuse, 1 Neither shown)2020, Appellate Term: 10 decisions (2 Default excused, 7 No reasonable excuse, 1 Hearing or remittal)2019, Appellate Term: 18 decisions (5 Default excused, 11 No reasonable excuse, 2 No meritorious defense)2018, Appellate Term: 4 decisions (1 Default excused, 1 No reasonable excuse, 2 Neither shown)2017, Appellate Term: 14 decisions (5 Default excused, 6 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2016, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 Neither shown)2015, Appellate Term: 3 decisions (1 No reasonable excuse, 2 Neither shown)2014, Appellate Term: 2 decisions (1 No reasonable excuse, 1 No meritorious defense)2013, Appellate Term: 1 decision (1 No meritorious defense)2012, Appellate Term: 8 decisions (2 Default excused, 5 No reasonable excuse, 1 Neither shown)2011, Appellate Term: 5 decisions (1 Default excused, 2 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2010, Appellate Term: 12 decisions (4 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 3 Neither shown)2009, Appellate Term: 5 decisions (2 Default excused, 2 No reasonable excuse, 1 No meritorious defense)2008, Appellate Term: 7 decisions (1 Default excused, 4 No reasonable excuse, 1 No meritorious defense, 1 Neither shown)2007, Appellate Term: 1 decision (1 No reasonable excuse)2006, Appellate Term: 5 decisions (3 Default excused, 1 No meritorious defense, 1 Neither shown)2005, Appellate Term: 2 decisions (2 Default excused)2004, Appellate Term: 4 decisions (1 No reasonable excuse, 2 No meritorious defense, 1 Neither shown)2024, Appellate Term: 2 decisions (1 Default excused, 1 No reasonable excuse)2025, Appellate Term: 3 decisions (3 Default excused)2026, Appellate Term: 3 decisions (3 No reasonable excuse)2003, Appellate Term: 1 decision (1 Neither shown)2023, Trial courts: 1 decision (1 No reasonable excuse)2011, Trial courts: 1 decision (1 No reasonable excuse)2009, Trial courts: 1 decision (1 Default excused)2007, Trial courts: 1 decision (1 Default excused)2004, Trial courts: 1 decision (1 No meritorious defense)2026, Trial courts: 1 decision (1 Default excused)2006, Trial courts: 2 decisions (1 Default excused, 1 Neither shown)2024, Trial courts: 1 decision (1 Default excused)This decision
20052010201520202025
Default excusedNo reasonable excuseNo meritorious defenseNeither shownHearing or remittalThis decisionCites it or cited by itCited or followed

Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Insurer validly served and subject to the court's jurisdiction, or service defect cured/excused (rules on the question, but another ground decided the case)

Held the process server's affidavits were prima facie evidence of proper CPLR 311 (a) (1) service on the insurer's authorized general agents, which the insurer's nonreceipt affidavit did not overcome.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 108
  • Trial courtsTrial 15
2013, Appellate Division: 1 decision (1 Objection waived/not required)2010, Appellate Division: 1 decision (1 Jurisdiction upheld)2008, Appellate Division: 2 decisions (2 Jurisdiction upheld)2006, Appellate Division: 1 decision (1 Jurisdiction upheld)2003, Appellate Division: 1 decision (1 Jurisdiction upheld)2022, Appellate Term: 7 decisions (1 Jurisdiction upheld, 5 Service defective, 1 No jurisdiction over insurer)2021, Appellate Term: 4 decisions (2 Service defective, 1 No jurisdiction over insurer, 1 Hearing or discovery needed)2020, Appellate Term: 8 decisions (2 Jurisdiction upheld, 4 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2019, Appellate Term: 53 decisions (4 Jurisdiction upheld, 6 Service defective, 42 No jurisdiction over insurer, 1 Objection waived/not required)2018, Appellate Term: 1 decision (1 No jurisdiction over insurer)2017, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 Service defective)2016, Appellate Term: 1 decision (1 Jurisdiction upheld)2015, Appellate Term: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2014, Appellate Term: 4 decisions (1 Jurisdiction upheld, 3 No jurisdiction over insurer)2013, Appellate Term: 4 decisions (1 Jurisdiction upheld, 1 Service defective, 1 No jurisdiction over insurer, 1 Objection waived/not required)2011, Appellate Term: 3 decisions (3 Service defective)2010, Appellate Term: 5 decisions (2 Jurisdiction upheld, 3 No jurisdiction over insurer)2009, Appellate Term: 2 decisions (2 Jurisdiction upheld)2007, Appellate Term: 2 decisions (2 Service defective)2006, Appellate Term: 1 decision (1 Jurisdiction upheld)2004, Appellate Term: 2 decisions (1 Jurisdiction upheld, 1 No jurisdiction over insurer)2023, Appellate Term: 1 decision (1 Jurisdiction upheld)2025, Appellate Term: 2 decisions (2 Hearing or discovery needed)2026, Appellate Term: 2 decisions (2 Jurisdiction upheld)2005, Appellate Term: 1 decision (1 Service defective)2024, Appellate Term: 1 decision (1 Jurisdiction upheld)2023, Trial courts: 1 decision (1 Jurisdiction upheld)2021, Trial courts: 1 decision (1 Service defective)2012, Trial courts: 1 decision (1 Jurisdiction upheld)2009, Trial courts: 1 decision (1 Jurisdiction upheld)2008, Trial courts: 2 decisions (2 Service defective)2005, Trial courts: 2 decisions (1 Service defective, 1 No jurisdiction over insurer)2004, Trial courts: 1 decision (1 Jurisdiction upheld)2003, Trial courts: 1 decision (1 Service defective)2026, Trial courts: 4 decisions (1 Jurisdiction upheld, 2 Service defective, 1 No jurisdiction over insurer)2025, Trial courts: 1 decision (1 Service defective)This decision
20052010201520202025
Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followed

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Santomauro v Allstate Ins. Co. (2019 NY Slip Op 51413(U)) FollowedThe insurer's affidavits failed to establish a reasonable excuse for defaulting despite prima facie proof of proper service.
  • Progressive Cas. Ins. Co. v Excel Prods., Inc. (2019 NY Slip Op 02569)The provider's conclusory denial of receiving process failed to support vacatur of the insurers' default declaratory judgment.
  • Westchester Med. Ctr. v Allstate Ins. Co. (2011 NY Slip Op 00377)The insurer established a reasonable clerical excuse for its brief default and a potentially meritorious defense.
  • Renelique v Allstate Ins. Co. (2020 NY Slip Op 50401(U))The insurer failed to establish a reasonable excuse for default by asserting only that it had no record of receiving process.
  • Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. (2019 NY Slip Op 29225)The insurer failed to establish a reasonable excuse for default by citing the absence of a record of receiving process.
  • Aminov v Allstate Ins. Co. (2019 NY Slip Op 50056(U))The insurer's conclusory denial of service failed to rebut the process server's affidavit or excuse its default.

Cited by

A label shows how the later decision treated this one.

  • Midwood Metro. Med., P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 51589(U)) FollowedThe insurer failed to establish a reasonable excuse for default based on nonreceipt of process served on its registered agent.
  • Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))The insurer failed to show a reasonable excuse for default because its denial of receipt did not specifically contradict the affidavit of service.

Similar decisions

  • GC Chiropractic, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51954(U))The insurer failed to establish a reasonable excuse for its default, and the process server's affidavit showed proper service.
  • Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))The insurer's motion to vacate its default was denied for failure to show both a reasonable excuse and a meritorious defense.
  • Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U))The insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering.
  • Milky Way Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 51968(U))The provider's renewal affidavit failed to identify the insurer to which it claimed to have resubmitted the bills.
  • Bayshore Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51121(U))The insurer's explanation of law office failure during a file transfer showed attorney neglect and did not reasonably excuse its default.
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