October 16, 2020

New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))

Headnote

The case involved New Age Acupuncture, P.C. and Global Liberty Insurance Company, with New Age Acupuncture, P.C. seeking to recover assigned first-party no-fault benefits following an accident. Global Liberty Insurance Company had defaulted in appearing for a scheduled court date and moved to open its default and dismiss the complaint based on an order and judgment from the Supreme Court, Bronx County, declaring that the company had no obligation to pay the plaintiff for claims arising from the accident in question. The main issue in the case was whether the Civil Court had correctly denied the defendant's motion to open its default, and the Appellate Term, Second Department held that the Civil Court had improvidently exercised its discretion in denying the motion. The Appellate Term reversed the order and granted the defendant's motion to open its default and, upon opening the default, dismiss the complaint, stating that this was necessary "for sufficient reason and in the interests of substantial justice." In summary, the relevant facts considered by the court included the default of Global Liberty Insurance Company and the order and judgment from the Supreme Court regarding the company's obligation to pay the plaintiff. The main issue decided by the court was whether the defendant's motion to open its default and dismiss the complaint should have been granted, and the holding of the case was that the motion should have been granted for sufficient reason and in the interests of substantial justice.

Reported in New York Official Reports at New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))

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

New Age Acupuncture, P.C., as Assignee of Charles Carl, Respondent,
against
Global Liberty Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered June 15, 2018. The order denied defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits arising from an accident that occurred on October 19, 2011, defendant defaulted in appearing for a scheduled court date. Defendant moved to, in effect, open its default and dismiss the complaint on the ground that, by amended order and judgment dated August 1, 2016, the Supreme Court, Bronx County, had declared, insofar as is relevant here, that defendant has no obligation to pay plaintiff for claims arising out of the accident underlying this claim. Defendant appeals from an order of the Civil Court entered June 15, 2018 denying defendant’s motion to, in effect, open its default and, upon opening the default, dismiss the complaint.

In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

Accordingly, the order entered June 15, 2018 is reversed and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 16, 2020