Motion for leave to enter a default insufficient

Freedom Chiropractic, P.C. v 21st Century Ins. Co., 2020 NY Slip Op 50686(U)(App. Term 2d Dept. 2020)

“As plaintiff acknowledges on appeal, defendant argued that defendant “did not receive at least 13 days’ notice [of plaintiff’s motion for leave to enter a default judgment], the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). “

My question here is since a party in default (unless they previously appeared) is not legally entitled to a notice of an application for a default (whether made to the court or clerk), is this decision correct?

Guarantee the argument is not preserved and the Court did nit have to reach it.

Absolutely horrible decision

New Age Med., P.C. v GEICO Gen. Ins. Co.., 2020 NY Slip Op 50316(U)(App. Term 2d Dept. 2020)

I am not the Gecko’s biggest defender for many reasons, but this takes the prize for what I have to call a bad decision and one that the Second Department might even look at if an application is made. I say might because they hate granting leave to no-fault cases, but this is so ridiculous that I hope they do.

The facts as I can tell (again New York refuses to join every other state and make all their Court’s e-file friendly) is that Geico’s answer was timely but the index number was wrong. Here is irony: before NY moved to file and serve in the lower courts 15 years ago, carriers received summonses without an index number.

Anyway, Plaintiff was looking to score an easy default and rejected the answer because the index number was wrong. Now, if the absence of an out of state certificate of conformity or a caption is a non-actionable defect, why should the wrong index or docket number be treated any differently? It is careless but not enough to put someone into default.

Well Geico waits a year to fix their mistake. The Civil Court and Appellate Term sanction the default and the ensuing clerk’s judgment. I am sorry but this is a crazy decision because I cannot even fathom how Geico, in the first instance, was in default.

“Upon the record presented, we agree with the Civil Court that defendant failed to explain why defendant had waited a year after its initial answer was rejected before serving a new answer bearing the correct index number. Consequently, we find that defendant failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether defendant offered a potentially meritorious defense to the action “

Part of me understands and has fallen victim to what I think is a very tight leash on the vacatur of defaults in no-fault matters. The cases are small, the volume is horrific at times and the cases at best only involve redistribution of wealth. The bigger picture is where is the right balance between mandating procedural regularity and preventing unbridled gamesmanship. This case sadly got it wrong and in a really big way. I could never fathom rejecting papers because someone put the wrong index or docket on the papers. Well, score one for lunacy.

Calendar service did not transmit the adjournment stipulation

Singh v Sukhu, 2020 NY Slip Op 01105 (2d Dept. 2020)

The Central Motion Part of the Supreme Court set a briefing schedule requiring that the plaintiff’s opposition papers be served by August 19, 2016. The plaintiff, unaware of the briefing schedule, served her opposition papers seven business days before the September 2, 2016, return date in accordance with CPLR 2214(b). On the return date, the plaintiff’s opposition was rejected as untimely. In an order entered September 20, 2016, the Supreme Court granted the DNJC defendants’ motion for summary judgment, noting that the plaintiff did not oppose the motion…

Here, the plaintiff demonstrated a reasonable excuse for her default. The affirmation of her attorney explained that the plaintiff’s default was reasonable and inadvertent due to the fact that the attorney’s “calender service” never communicated the briefing schedule to counsel’s office and that counsel first learned of the August 19, 2016, date when it attempted to file the opposition papers only six days later (see Bank of N.Y. Mellon v Faragalla, 174 AD3d 677).”

DJ following a default

Actual Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 50185(U)(App. Term 2d Dept. 2020)

“On the instant appeal, defendant has annexed to its brief an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual [*2]Chiropractic, P.C.” seeking no-fault benefits under the same claim number and regarding the same assignor and motor vehicle accident as in the case at bar are permanently stayed. As a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, in the interest of judicial economy, takes judicial notice of the Supreme Court’s order entered February 9, 2018, which permanently “stays” the parties from proceeding further in the action at bar.

In light of the stay issued by the Supreme Court, this appeal has “been rendered academic as any determination on [this] appeal[ ] would not, under the facts of this case, have a direct effect upon the parties” (Matter of Claudia G. [Ermelio G.], 71 AD3d 894, 895 [2010]).”


Market St. Surgical Ctr. v Autoone Ins. Co., 2019 NY Slip Op 52054(U)(App. Term 2d Dept. 2019)

“Pursuant to CPLR 5015 (a) (1), a court may vacate a default in opposing a motion where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense to the motion” (SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 744-745 [2007]). As plaintiff failed to demonstrate that it possessed a meritorious defense to defendant’s motion, plaintiff’s motion to vacate its default should have been denied.”

I really thought they did not establish a reasonable excuse.

Settlement of a default judgment

Diagnostic Medicine, P.C. v Auto One Ins. Co., 2019 NY Slip Op 51891(U)

Five says notice to settle a judgment is necessary on default when the party previously appeared.

“A defendant which appears in an action, but subsequently defaults “is entitled to at least five days’ notice of the time and place” of an application to the court or the clerk for leave to enter a default judgment (CPLR 3215 [g] [1]; see Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2015]). In the case at bar, plaintiff’s application for the entry of the judgment was dated March 23, 2016 and apparently served on defendant on March 23, 2016. The judgment was entered the following day. While a court may, upon such a default, dispense with the notice requirement (see CPLR 3215 [g] [1]), there is no indication in the record before us that the Civil Court had exercised such discretion. Plaintiff’s failure to give defendant notice as required by CPLR 3215 (g) (1) deprived the court of jurisdiction to entertain plaintiff’s application to enter the judgment”

” However, where a judgment is vacated due to a jurisdictional defect of improper notice, such a defect “does not, standing alone, entitle [defendant] to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits” 

Default not vacated: competent evidence not presented

Shy v Shavin Corp., 2019 NY Slip Op 06011 (2d Dept. 2019)

” Here, the Supreme Court determined that the defendant established a reasonable excuse for its default based upon its insurance carrier’s delay before defending the action. However, in support of its motion, the defendant failed to submit admissible evidence to demonstrate that it notified its insurance carrier of the existence of this action prior to its default. In support of its motion, the defendant submitted an affidavit from a litigation consultant employed by the insurance carrier. The litigation consultant’s assertion that the insurance agent/broker for the defendant attempted to forward a copy of the summons and complaint to the insurance carrier in October 2017 was based upon inadmissible hearsay (see Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738, 739). Thus, the defendant failed to demonstrate that its default was attributable to insurance carrier delay (see generally Gershman v Ahmad, 131 AD3d 1104, 1106). In addition, the evidence demonstrating that, following the order granting the plaintiff’s motion for leave to enter a default judgment, the insurance carrier delayed in assigning counsel to move on the defendant’s behalf to vacate the default, does not establish a reasonable excuse for the default.”

A primer on 5015(a)(1)

Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 2019 NY Slip Op 29225 (App. Term 2d Dept. 2019)

“As the basis for its claim of a reasonable excuse, defendant contended that it had not received process. However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person. Rather, defendant submitted only an affidavit by its claim representative, who merely stated that defendant did not have a record of having received process in this matter and that, if process had been received, it would have been recorded in defendant’s computer system in accordance with defendant’s business practices and procedures, which the affidavit set forth, but that no such record existed”.

The lesson here is when denying service, it will take more than the litigation representative to allege an absence of service. I think the inquiry is probably different when service is through DFS.

Law Office Failure

Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641 (2d Dept. 2019)

It is not every day the Second Department outlines the law office failure that is deemed excusable. Sadly, this happens to many all too frequently.

“Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff’s motion based on evidence of law office failure. In an affirmation, the appellants’ attorney explained that upon receiving the plaintiff’s motion, he directed his office’s legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations”

You know DFS does NOT approve of this disclaimer

Hereford Ins. Co. v Forest Hills Med., P.C., 2019 NY Slip Op 03926 (1st Dept. 2019)

” Moreover, movant defendants failed to demonstrate a meritorious defense. The failure by the occupants of the vehicle to subscribe and return the transcripts of their examinations under oath violated a condition precedent to coverage and warranted denial of the claims (see Hertz Vehs., LLC v Gejo, LLC, 161 AD3d 549[1st Dept 2018]). “

I really find this basis to disclaim coverage disingenuous. The EIP came to the EUO, told his or her story, lied or did not lie. We go from there. I cannot fathom how the failure to return an EUO transcript – which is a sworn to document and which may be used against the deponent or the assignee as a matter of course – warrants the loss of no-fault benefits.

I am quite sure that DFS did not put the “and subscribe the same” (11 NYCRR 65-1.1[b]) language in the regulations to authorize the voiding of coverage due to the failure to sign the transcript. I also suspect this case will spur either an emergency amendment from DFS or an opinion letter. Thankfully, this appeared in the context of a motion to vacate a default, which means the Court of Appeals will not touch this matter, i.e., the failure to establish a reasonable excuse is reviewed under an abuse of discretion standard that will not be upset on appeal.

I think this basis for a disclaimer is the colloquial playing with fire.