State Farm Mutual Automobile Insurance Co. v. Austin Diagnostic Medical, P.C.

Appellate Division of the Supreme Court of New York

State Farm Mutual Automobile Insurance Co. v. Austin Diagnostic Medical, P.C.

2017 NY Slip Op 5992, 153 A.D.3d 576, 60 N.Y.S.3d 98

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 2, 2017

Docket2016-02928

StatusPublished

Cited by4 cases

This text of 2017 NY Slip Op 5992 (State Farm Mutual Automobile Insurance Co. v. Austin Diagnostic Medical, P.C.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Farm Mutual Automobile Insurance Co. v. Austin Diagnostic Medical, P.C., 2017 NY Slip Op 5992, 153 A.D.3d 576, 60 N.Y.S.3d 98 (N.Y. Ct. App. 2017).

Pincite

Opinion

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Queens County (Dufficy, J.), entered February 29, 2016, which denied its motion to extend its time to answer, or in the alternative, to compel the plaintiff to accept the untimely answer.

Ordered that the order is affirmed, with costs.

The plaintiff insurance company commenced this action against the defendant, seeking a judgment declaring that it was not obligated to pay certain no-fault insurance benefits because the defendant failed to appear for examinations under oath. The defendant filed an answer approximately 3V2 months after the statutory time to file an answer had expired. The plaintiff rejected the answer as untimely, and the defendant *577 moved to extend its time to answer, or in the alternative, to compel the plaintiff to accept the untimely answer. The Supreme Court denied the motion, and the defendant appeals.

To compel the plaintiff to accept an untimely answer as timely or to extend the time for a defendant to answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see Ryan v Breezy Point Coop., Inc., 76 AD3d 523, 524 [2010]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]). Here, the defendant submitted an answer which was verified only by its attorney and an affirmation from its attorney who did not have personal knowledge of the facts. These documents were insufficient to demonstrate that the defendant had a potentially meritorious defense to the action (see Salch v Paratore, 60 NY2d 851 [1983]; Ryan v Breezy Point Coop., Inc., 76 AD3d at 524; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]).

The parties’ remaining contentions either are without merit or have been rendered academic in light of our determination.

Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion.

Dillon, J.P., Austin, Hinds-Radix and LaSalle, JJ., concur.

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In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Queens County (Dufficy, J.), entered February 29, 2016, which denied its motion to extend its time to answer, or in the alternative, to compel the plaintiff to accept the untimely answer.

Ordered that the order is affirmed, with costs.

The plaintiff insurance company commenced this action against the defendant, seeking a judgment declaring that it was not obligated to pay certain no-fault insurance benefits because the defendant failed to appear for examinations under oath. The defendant filed an answer approximately 3V2 months after the statutory time to file an answer had expired. The plaintiff rejected the answer as untimely, and the defendant *577 moved to extend its time to answer, or in the alternative, to compel the plaintiff to accept the untimely answer. The Supreme Court denied the motion, and the defendant appeals.

To compel the plaintiff to accept an untimely answer as timely or to extend the time for a defendant to answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see Ryan v Breezy Point Coop., Inc., 76 AD3d 523, 524 [2010]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]). Here, the defendant submitted an answer which was verified only by its attorney and an affirmation from its attorney who did not have personal knowledge of the facts. These documents were insufficient to demonstrate that the defendant had a potentially meritorious defense to the action (see Salch v Paratore, 60 NY2d 851 [1983]; Ryan v Breezy Point Coop., Inc., 76 AD3d at 524; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]).

The parties’ remaining contentions either are without merit or have been rendered academic in light of our determination.

Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion.

Dillon, J.P., Austin, Hinds-Radix and LaSalle, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 5992, 153 A.D.3d 576, 60 N.Y.S.3d 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-mutual-automobile-insurance-co-v-austin-diagnostic-medical-nyappdiv-2017.

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