Stoessel v Allstate Ins. Co.

[*1] Stoessel v Allstate Ins. Co. 2010 NY Slip Op 51244(U) [28 Misc 3d 129(A)] Decided on July 16, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-576 Q C.

Dr. Robert E. Stoessel, Psychologist, P.C., Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 2, 2008. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this commercial claims action to recover assigned first-party no-fault benefits in the sum of $880.52. Defendant failed to appear or answer, and a default judgment was entered against defendant in 2004. In 2008, defendant moved to vacate the default judgment, arguing, inter alia, that the "small claims part" [sic] of the Civil Court of the City of New York does not have subject matter jurisdiction over actions brought by an assignee, and that its motion should be granted pursuant to CPLR 317 or 5015. The Civil Court denied defendant's motion on the ground that it was untimely. The instant appeal by defendant ensued.

Contrary to defendant's contention, the instant action was properly commenced in the Commercial Claims Part of the Civil Court by plaintiff - - a professional corporation which had its principal office in the State of New York [FN1] (see CCA 1801-A [a]; 1809-A [a]; cf. East End [*2]Med., P.C. v Oxford Health Ins., Inc., 12 Misc 3d 135[A], 2006 NY Slip Op 51229[U] [App Term, 1st Dept 2006]).

Defendant's contention that there was no proof that defendant had been served with the notice of claim also lacks merit. Pursuant to CCA 1803-A, the clerk of the court is to provide a defendant with notice of the claim "by ordinary first class mail and certified mail with return receipt requested . . . If, after the expiration of twenty-one
days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim."

The commercial claims index card herein indicates that defendant was properly served with notice of the claim. Defendant's conclusory denial of service failed to rebut the presumption that defendant received notice of the claim, since the mail had not been returned as undeliverable prior to the expiration of 21 days (see CCA 1803-A). Consequently, it was incumbent upon defendant to demonstrate a reasonable excuse for its default as well as a meritorious defense to the action (see CPLR 5015 [a]; Euguene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), which it failed to do. Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant's motion to vacate the default judgment. Accordingly, substantial justice was done between the parties (see CCA 1807-A) and, thus, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 16, 2010 Footnotes

Footnote 1: We note that both CCA 1801-A and 1809-A were added by the Legislature in 1987. In 1992, CCA 1801-A (a) was amended to replace the original words therein, i.e., that plaintiff have a "principal office in the city of New York" with the words "principal office in the state of New York"; however, CCA 1809-A (a) was not similarly amended. The corresponding sections in the UDCA and UCCA have always provided that the corporate plaintiff's principal office be in the State of New York, and the Uniform Rules for the New York City Civil Courts (22 NYCRR) § 208.41-a (a) (1) likewise states that the principal office must be in the State of New York. Clearly, the failure to so amend CCA 1809-A (a) is an oversight.