A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 2009 NY Slip Op 52322(U) (App. Term, 2nd, 2009)
To be entitled to vacatur of the order granting defendant’s motion for summary judgment upon plaintiffs’ failure to appear for oral argument, plaintiffs were required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for their default and a meritorious defense to defendant’s motion (see St. Rose v McMorrow, 43 AD3d 1146 [2007]). Plaintiffs did not sufficiently set forth a reasonable excuse for their failure to appear on the return date of defendant’s motion for summary judgment (see McClaren v Bell Atl., 30 AD3d 569 [2006]; see also Uniform Rules for Civ Ct [22 NYCRR] ยง 208.14). Plaintiffs’ allegation of law office failure is factually insufficient (see Robinson v New York City Tr. Auth., 203 AD2d 351 [1994]), in that they failed to explain whether the normal two-part procedure for assigning a per diem attorney to cover a court appearance, as outlined in their submission to the court, was followed in its entirety. Accordingly, plaintiffs’ motion to vacate the prior order was properly denied.
Innovative Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 52321(U) (App. Term,
Contrary to the finding of the Civil Court, defendant demonstrated, based upon its standard office practice and procedure used to ensure that claim denial forms are properly addressed and mailed, that it timely mailed the denial of claim forms at issue (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; AJS Chiropractic, P.C. v Mercury Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50208[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, the report of the independent chiropractic/acupuncture examination performed on plaintiff’s assignor, accompanied by the examiner’s affidavit, was in admissible form, and provided a factual basis and medical rationale for defendant’s chiropractor’s opinion that the services at issue were not medically necessary (see AJS Chiropractic, P.C., 22 [*2]Misc 3d 133[A], 2009 NY Slip Op 50208[U]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]).
Since the affidavit of plaintiff’s chiropractor, which did not meaningfully refer to or discuss the conclusion of defendant’s chiropractor, was insufficient to rebut defendant’s prima facie showing (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
