Key Takeaway
Appeals court vacates inappropriate default judgment in no-fault insurance case where trial court refused reasonable adjournment despite clear calendar confusion.
Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co., 2016 NY Slip Op 51031(U)(App. Term 2d Dept. 2016)
I admittedly find the extent that the judges and attorneys in the Civil Kings motion part 1) like to take defaults; and 2) refuse to vacate defaults to be alarming. There is no other Civil Court or District Court that I have practiced in where the court and judges look for reasons to default litigants.
This case and every other case I end up having to bring to the Appellate Term to vacate defaults just proves that insanity trumps reason, and not the Trump that is looking to Make America Great Again. Defendant moved for summary judgment and ancillary relief. Court found triable issue of medical necessity. Plaintiff moved for summary judgment after Defendant moved for summary judgment and received a later adjourn date. Attorney comes to court on plaintiff’s motion and told judge the issue was resolved in prior motion and there was a calendar issue so “formal” opposition was not interposed. Brief adjournment please? Clearly, nobody acted willfully or neglected the file. Plaintiff meant to make a cross-motion but made it returnable on another day. In the real world, the motions would have been heard together. In a surreal world, a one week adjournment would have been granted for a one line opposition with the order and motion papers from motion sequence number to be attached as an exhibit
Court defaulted defendant instead of adjourning the matter, which was inappropriate because the law of the case was that a triable issue of fact medical necessity. Again, do not expect anybody to go through a file and say that Plaintiff’s motion lacks merit. Defendant immediately moved to vacate and the presiding judge on the vacatur application denied the motion. No comment here. Off to the Appellate Term which vacated the order.
This paradigm and variants of it represent normal behavior in the Civil Kings motion term.
A solution might be to assign cases to IAS parts, give shorter adjournments, allow 2-3 adjournments and allow greater judicial case management. The Civil Kings motion term is broken on so many levels.
