Dennis v Allstate Ins. Co.

[*1] Dennis v Allstate Ins. Co. 2008 NY Slip Op 50654(U) [19 Misc 3d 1112(A)] Decided on February 8, 2008 Supreme Court, Nassau County Brandveen, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2008
Supreme Court, Nassau County

Keneisha Dennis, Plaintiff,

against

Allstate Insurance Company, Defendant.



8206/04

Antonio I. Brandveen, J.

The plaintiff moves for an order vacating and setting aside any prior disposition of this matter, restoring this matter to active for a determination on the merits, and extending the time for the plaintiff to file a note of issue. The defendant opposes the motion. The underlying action seeks Payment of medical bills under no-fault coverage from an automobile accident Denied, where the infant plaintiff sustained personal injuries on August 10, 1999 when struck by a motor vehicle while riding a bicycle owned and operated by Nathaniel Salvador at or near the intersection of Jerusalem Avenue and Hawthorne Avenue, Uniondale, New York.

The plaintiff's attorney states, in a supporting affirmation dated August 28, 2007, the mother of the infant plaintiff, as a result of the injuries, commenced a personal injuries claim against Salvador, and the defendant, under its insurance policy number 078074840 covered the Salvador vehicle for liability and no-fault. The plaintiff's attorney states the liability action was eventually settled for $10,000.00 before now retired Nassau County Supreme Court Justice Bruce D. Alpert resulting in a $5,935.27 net recovery to the client. The plaintiff's attorney report that sum remains in escrow as there are multiple liens against proceeds totaling $14,451.81, nearly three times the actual net recovered here. The plaintiff's attorney asserts the liens arose because none of the medical bills incurred by the plaintiff were covered by the defendant under its no-fault insurance coverage. The plaintiff's attorney avers the defendant contended the no-fault application for benefits was untimely filed within the 90 day period, and subsequently the infant plaintiff brought an action for payment of those medical bills in this action. The [*2]plaintiff's attorney submits, upon information and belief, all discovery in this action has been completed, including depositions and physical examinations. The plaintiff's attorney points out a certification order was entered on or about November 29, 2005, in this action which required the plaintiff to file a note of issue within 60 days of the order, but a note of issue was not filed within that time, and, upon information and belief, this matter was dismissed on March 14, 2006, as a pre-note issue matter for failure to file a note of issue. The plaintiff's attorney alleges, subsequent to the certification conference and continuing to the present, settlement discussions were held between the law offices of the parties, and copies of all itemized bills were obtained and forwarded to the attorneys for the defendant on May 2, 2006, requesting payment for various medical providers. The plaintiff's attorney reports the defense counsel, in approximately June 2006, responded to the plaintiff's request for settlement, and advised a problem was encountered since the plaintiff had originally executed assignments to the medical providers. The plaintiff's attorney maintains counsel for the plaintiff discussed the assignment of benefits problem with the attorney for the defendant resulting in the plaintiff's agreement to attempt to have the assignment of benefits vacated so the plaintiff could receive the benefits, and pay the outstanding medical bills. The plaintiff's attorney alleges the law office of the plaintiff, since approximately July 13, 2006, has been attempting to have the previously executed assignments vacated with the agreement the money collected would be applied to the outstanding medical bills, and in the interim, the note of issue was not filed which resulted in the dismissal of this matter. The plaintiff's attorney contends there has been activity during the one year period since the matter has been dismissed, and such efforts are continuing in an attempt to settle the matter, but if it cannot be settled, it must be determined on the merits. The plaintiff's attorney affirms, the plaintiff's motion did testify, during the course of the discovery in this action, she filed a no-fault application within the required 90 day period, however, the plaintiff's mother did not retain a copy of the no-fault application, and the defendant apparently denied receiving the application.

The defense attorney states, in an opposing affirmation dated October 30, 2007, the plaintiff's motion must be denied because (1) the plaintiff fails to show a reasonable excuse why this case was not restored within one year; (2) the plaintiff fails to demonstrate a meritorious cause of action; (3) the plaintiff fails to show the absence of prejudice, if the matter is restored; and (4) the plaintiff fails to demonstrate no intent to abandon the action. The defense attorney states action was dismissed on March 14, 2006, due to the plaintiff's failure to file a note of issue with 60 days of the order, and on August 28, 2007, the plaintiff brought a motion to restore this matter to the trial calendar. The defense attorney asserts the plaintiff's counsel has failed to offer any reasonable excuse why it took 17 months to bring a motion seeking restoration. The defense attorney avers, by the plaintiff's own admission in the moving papers, the plaintiff assigned the right to sue to medical providers, and there has not been any release of the assignment of those benefits, so the plaintiff has no standing to sue. The defense attorney insists the plaintiff [*3]is not able to provide proof a no-fault application was mailed within 90 days of the date of accident. The defense attorney points out the plaintiff's motion is not supported by a person having personal knowledge of facts, to wit the plaintiff fails to include the required sworn statement of merits to support the contention the plaintiff's bills were timely mailed to the defendant. The defense attorney contends the defendant is prejudiced by the delay, if the action is restored to the trial calendar, since more than eight years have passed since the August 10, 1999 accident, and August 28, 2007, the date of the motion to restore. The defense attorney points out there is a presumption of abandonment when the plaintiff fails to demonstrate no intent to abandon the action under CPLR 3404, and this action was dismissed on March 16, 2006, and the plaintiff seeks to restore it more than a year after the dismissal.

The plaintiff's attorney counters, in a reply affirmation dated December 10, 2007, the defense contention the motion should be denied since the plaintiff has not complied with the requirements to restore an action pursuant to CPLR 3404 because no note of issue was filed, CPLR 3404 is inapplicable. The plaintiff's attorney notes the sanctions under 22 NYCRR § 208.14 (c) and requirements of CPLR 3404 as postulated by the plaintiff do not apply to a matter which has been disposed prior to the filing of a note of issue. The plaintiff's attorney challenges the defense assertion that the motion should be denied because an affidavit has not been submitted by a person with knowledge of the facts. The plaintiff's attorney points to the reply affidavit dated December 10, 2007, of the plaintiff's mother, a person with such knowledge, and points out the plaintiff's mother was deposed on August 23, 2005, and testified she had received, completed, signed, and returned the no-fault application to the defendant within the required 90 day period. The plaintiff's attorney asserts there is a reasonable excuse for not moving within one year based upon ongoing settlement discussions, and the plaintiff has a meritorious cause of action since the plaintiff's position, as stated by the plaintiff's mother in sworn statements and testimony, is the defendant received the no-fault application within the required period. The plaintiff's attorney avers the prejudice claim of the defense is specious because the issue is whether the defendant received the no-fault application, and the passage of time creates no prejudice to the defendant. The plaintiff's attorney maintains the plaintiff has continued to pursue this matter, and there is no demonstration of an intent to abandon the action.

"No-fault benefits are intended to reimburse persons for, among other things, medical expenses "incurred" as a result of a motor vehicle accident (Insurance Law § 5102 [a])" (Todaro v. GEICO General Ins. Co., 46 AD3d 1086, 1088, 848 NYS2d 393 [3rd Dept., 2007]). A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 NY2d 138, 501 NYS2d 8, 492 NE2d 116; Dominguez v. Carioscia, 1 [*4]AD3d 396, 766 NYS2d 685). Here, the Supreme Court improvidently exercised its discretion in denying the defendant's motion to vacate its default since the defendant established that the default was not willful, but rather, was due to law office failure on the part of its counsel (see Hospital for Joint Diseases v. ELRAC, Inc., 11 AD3d 432, 783 NYS2d 612; Weekes v. Karayianakis, 304 AD2d 561, 758 NYS2d 117; CPLR 2005). Furthermore, the defendant demonstrated a meritorious defense (see Fentin & Goldman v. Ito, 2 AD3d 397, 767 NYS2d 865). Accordingly, the Supreme Court should have vacated the defendant's default in appearing and answering the complaint

Friedman v. Crystal Ball Group, Inc., 28 AD3d 514, 514-515, 813 NYS2d 496 [2nd Dept., 2006].

This Court has carefully reviewed and considered all of the parties' papers submitted on this motion. In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5

New York and Presbyterian Hosp. v. Selective Ins. Co. of America, 43 AD3d 1019, 1020, 842 NYS2d 63 [2nd Dept., 2007].

This Court finds the plaintiff has not met the prerequisites for the relief sought here.

Accordingly, the motion is denied in all respects. So ordered.

Dated: February 8, 2008

E N T E R:

______________________________

J. S. C.

FINAL DISPOSITION XXXNON FINAL DISPOSITION