Renelique v Allstate Ins. Co.
Annotate this CaseDecided on March 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-774 K C
Pierre Jean Jacques Renelique, as Assignee of Deon, Dorneval, Respondent,
against
Allstate Insurance Company, Appellant.
Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 3, 2018, and from a judgment of that court entered April 13, 2018. The order denied defendant's motion to, among other things, vacate a judgment of that court entered July 22, 2016 upon defendant's failure to appear or answer the complaint and granted plaintiff's cross motion for costs and sanctions, pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1, to the extent of awarding plaintiff costs in the principal sum of $250. The April 13, 2018 judgment, entered pursuant to the January 3, 2018 order, awarded plaintiff the principal sum of $250 in costs.
ORDERED that, on the court's own motion, so much of the notice of appeal as is from so much of the order as awarded plaintiff costs in the principal sum of $250 is deemed a premature notice of appeal from the judgment entered April 13, 2018 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment entered April 13, 2018 is reversed, without costs, so much of the order as granted the branch of plaintiff's cross motion seeking costs is vacated, and that branch of plaintiff's cross motion is denied; and it is further,
ORDERED that the order, insofar as reviewed on direct appeal, is affirmed, without costs. [*2]
In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on July 22, 2016 upon defendant's failure to appear or answer the complaint, which had been delivered to an individual known by the licensed process server to be a general agent of defendant who was authorized to accept service on behalf of defendant. Defendant thereafter moved to, among other things, vacate the default judgment pursuant to CPLR 5015 (a) (1), arguing that it had a reasonable excuse for the default, in that defendant did not have any record of having received the summons and complaint, and that it had a potentially meritorious defense to the action. Plaintiff cross-moved for an order pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1, imposing sanctions and costs. In an order entered January 3, 2018, the Civil Court denied defendant's motion and granted plaintiff's cross motion to the extent of awarding plaintiff the sum of $250 in costs. A judgment awarding plaintiff the principal sum of $250 was entered on April 13, 2018.
The process server's affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by alleging service upon a general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]). Thus, to vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
In an affidavit in support of defendant's motion, defendant's claim representative stated that defendant's excuse for failing to answer the complaint was that it did not have a record of having received the summons and complaint.
"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" (Pierre J. Renelique Physician, P.C., 64 Misc 3d at 100).
As defendant failed to demonstrate a reasonable excuse for its default, it is not necessary to consider whether defendant offered a potentially meritorious defense to the action (see Bank of Am., N.A. v Welga, 157 AD3d 753 [2018]). Consequently, the Civil Court properly denied defendant's motion.
The Civil Court should have also denied the branch of plaintiff's cross motion seeking an award of costs pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1. "A court, in its discretion, may award to any party or attorney in a civil action . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a]). While the Civil Court noted in its order that plaintiff had presented evidence of a pattern of numerous similar defaults by this defendant in other cases, this fact, standing alone, is insufficient to establish that defendant's conduct was frivolous within the meaning of Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) (see Liang v Yi Jing Tan, 155 AD3d 1023 [2017]). Indeed, the Civil Court did not even state that defendant's behavior was frivolous, nor did it set forth the reasons why the award of costs to plaintiff was appropriate (see Vogel v Vogel, 128 AD3d 681 [2015]) or why the sum of $250 was justified in the absence of a demonstration of "actual expenses reasonably incurred" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a]).
Accordingly, the judgment entered April 13, 2018 is reversed, so much of the order as granted the branch of plaintiff's cross motion seeking costs is vacated, that branch of plaintiff's cross motion is denied, and the remainder of the order is affirmed.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 13, 2020
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