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Queens-Roosevelt Med. Rehab, P.C. v. Alea Care of Gab Robins Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Districts.
May 22, 2014
43 Misc. 3d 142 (N.Y. App. Term 2014)

Opinion

No. 2011–2545 Q C.

2014-05-22

QUEENS–ROOSEVELT MEDICAL REHAB, P.C. as Assignee of Estela Modesto, Appellant, v. ALEA CARE OF GAB ROBINS INS. CO., Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered June 20, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff's motion seeking to vacate so much of a prior order of the same court (Cheree A. Buggs, J.) entered May 10, 2011 as granted, on default, the branch of a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment dismissing so much of the complaint as sought to recover $13,571.37 from Alea.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order dated May 10, 2011, granted, on default, a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment (1) dismissing so much of the complaint as was asserted against GAB Robins and (2) dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. Plaintiff subsequently moved to, among other things, vacate so much of that order as granted the branch of the motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. By order dated June 20, 2011, the Civil Court denied plaintiff's motion.

A claim of law office failure may be accepted as a reasonable excuse for a default where the claim is supported by a “detailed and credible” explanation of the default or defaults at issue ( Henry v. Kuveke, 9 AD3d 476, 479 [2004] ). Conclusory and unsubstantiated claims of law office failure are insufficient ( see Lugauer v. Forest City Ratner Co., 44 AD3d 829, 830 [2007]; Wechsler v. First Unum Life Ins. Co., 295 A.D.2d 340, 341 [2002] ). Here, plaintiff's attorney alleged only that opposition to the motion had been served upon Alea, and that it was “unknown why the attorney who appeared in court on May 10, 2011 did not have the written opposition.” This statement did not “adequately detail and substantiate the alleged law office failure” ( see State Farm Mut. Auto. Ins. Co. v. Preferred Trucking Serv. Corp., 42 Misc.3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013] ).

Accordingly, the order, insofar as appealed from, is affirmed.


Summaries of

Queens-Roosevelt Med. Rehab, P.C. v. Alea Care of Gab Robins Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Districts.
May 22, 2014
43 Misc. 3d 142 (N.Y. App. Term 2014)
Case details for

Queens-Roosevelt Med. Rehab, P.C. v. Alea Care of Gab Robins Ins. Co.

Case Details

Full title:QUEENS–ROOSEVELT MEDICAL REHAB, P.C. as Assignee of Estela Modesto…

Court:Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Districts.

Date published: May 22, 2014

Citations

43 Misc. 3d 142 (N.Y. App. Term 2014)
2014 N.Y. Slip Op. 50867
993 N.Y.S.2d 646