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Another doozy of a default decisionMay 23, 2010

Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 2010 NY Slip Op 50889(U)(App. Term 2d Dept. 2010)

“The motion was unopposed. The Civil Court denied the motion, and this appeal by plaintiff ensued.

In support of its motion, plaintiff proffered neither an affidavit nor a verified complaint by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted a complaint verified by counsel, who did not demonstrate personal knowledge of the facts, and an affidavit of the president of a third-party billing company, which affidavit did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers [*2]Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v Geico Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).”

It is a motion to enter a default.  The non-answering party admits all traversable allegations.  A bill was sent, it is overdue.  Assuming that a business record foundation is necessary to establish a prima facie case, the failure to object to this “defect” renders it waived.  A default renders the defect waived.

Yet, even if a business record foundation is non-waivable, this “defect” is conceded through the failure to timely answer, appear or otherwise move.

So the court is way off on this one, similar to the decision in New South Insurance, where we (the defense bar) were told that it is easier for us to obtain a jury verdict on a contested staged accident case, then it is to obtain a default judgment in the same case.

Here is the real question, and I asked this one after New South Insurance was decided:  why the heck was this appealed?  Actually, this question is better: how come Plaintiff did not enter a clerk’s judgment, and sought to enter a default on notice?

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