Gentle Care Med. Servs., P.C. v Country Wide Ins. Co., 2017 NY Slip Op 50487(U)(App. Term 2d Dept. 2017)
Leave to renew
(1) In support of its motion, defendant submitted a general release, executed by plaintiff’s sole officer and shareholder. Defendant’s counsel stated that he had been unaware of the release at the time the prior motions had been decided. The release, dated before plaintiff had made its motion for summary judgment, essentially releases all pending no-fault claims against any insurance provider. It further states: “Presentment of a copy of this Release shall serve to advise any forum in which a claim for benefits is pending or subsequently filed on behalf of any of the Entities that such claim(s) has been withdrawn with prejudice.” In opposition, plaintiff’s counsel did not challenge the validity, authenticity or applicability of the release. In fact, plaintiff’s counsel did not discuss the release
(2) ” Here, defendant proffered a release, the authenticity of which plaintiff has not challenged, which released the no-fault claims underlying this action. The release constitutes a complete bar to the instant action (see Warmhold v Zagarino, 144 AD3d 672 [2016]; Powell v Adler, 128 AD3d 1039 [2015]). Moreover, defendant’s counsel alleged that he had been unaware of the release when the prior motions had been decided”
Motion granted.
Gentle Care Med. Servs., P.C. v Country Wide Ins. Co., 2017 NY Slip Op 50488(U)(App. Term 2d Dept. 2017)
Vacatur of order in the Interest of Justice
(1) On appeal, defendant concedes that it did not timely submit the combined cross motion and opposition to plaintiff’s motion, and, indeed, the record establishes that the papers were late by one business day.
(2) “In the circumstances presented, we find that the Civil Court improvidently exercised its discretion in allowing the May 20, 2014 order to stand. Rather, “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]), the May 20, 2014 order should be vacated and, upon such vacatur, plaintiff’s motion for summary judgment should be denied and defendant’s cross motion for summary judgment dismissing the complaint should be granted”
It is so rare to see an appellate court in the Second Department affirm a lower court vacating a default based upon the Court’s interest of justice jurisdiction. It is even rarer to see an appeals court vacate a default on its own based upon the Appellate Court’s own interest of justice jurisdiction. This is really an amazing procedural decision. The Court may limit how far they will apply interest of justice jurisdiction in certain instances where coverage is stripped.
