Here is a case having to do with vacating a Default judgment.  The Court also made mention of the WC defense and that its not a precludable defense:


Daily Medical Equipment Distribution Center, Inc. v. State Farm Mutual Ins. Comp., 050419/15, NYLJ 1202788299389, at *1 (Civ., KI, Decided May 23, 2017)

Plaintiff moves for a default judgement in this suit to recover no-fault benefits for medical services.  Defendant, State Farm Mutual cross-moves to dismiss the complaint, arguing that the Workers’ Compensation Board has exclusive jurisdiction because the plaintiff’s assignor was injured in the scope of his employment. Alternatively, State Farm moves for an order compelling the plaintiff to accept the defendant’s answer.  Plaintiff served its complaint on State Farm on September 29, 2015. State Farm’s claims-representative contacted the plaintiff on October 22, 2015 and asked for additional time to serve an answer. The plaintiff refused.  The claim rep advised Plaintiff’s attorney that the assignor was injured in the scope of his employment.  Plaintiff demanded that State Farm provide documentary evidence supporting its claimed defense.  The claim rep did not forward the summons and complaint to State Farm’s counsel until March 1, 2016, and State Farm did not serve its answer until March 3, 2016. The plaintiff rejected the answer, which, by that time, was over four months late.  The Court said:

A defendant who fails to timely answer a complaint must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see CitiMortgage Inc. v. Kowalski, 130 AD3d 558 [2d Dept 2015]; Mannino Development Inc. v. Linares, 117 AD3d 995, 995-996 [2d Dept 2014]). The determination of what constitutes a reasonable explanation lies within the discretion of the court (see Wells Fargo Bank, N.A. v. Cervini, 84 AD3d 789 [2d Dept 2011]).

State Farm’s excuse for its default is not reasonable. Relief from default generally is granted in cases where circumstances exist beyond a party’s control, or where an excusable mistake was made, such as “law office failure” (see CPLR §2005; Sarcona v. J & J Air Container Station, Inc., 111 AD3d 914, 915 [2d Dept 2013]). These, or similar, circumstances do not exist here. State Farm made a calculated and intentional decision to delay serving its answer. In seeking to excuse State Farm’s default, Mr. McMillian chronicles his five-month effort to obtain information to establish State Farm’s Workers’ Compensation defense. Presumably, he was attempting to save his employer the time and expense of litigation; however, regardless of its motives, State Farm’s delay tactics were willful and intentional (see White v. Daimer Chrysler Corp., 44 AD3d 651, 652 [2d Dept 2007]. Given that the plaintiff had clearly advised State Farm that it would not consent to an extension, its reasons for the delay in answering the complaint are insufficient to establish a reasonable excuse for its default (see Juseinoski v. Board of Educ. Of City of New York, 15 AD3d 353, 356 [2d Dept 2005]).

Since State Farm has failed to offer any reasonable explanation for its failure to timely answer the complaint, it is unnecessary to consider the issue of whether it has a potentially meritorious defense to the action (see US Bank NA v. Alba, 130 AD3d 715, 716 [2d Dept 2015]; Wells Fargo Bank v. Malave, 107 AD3d 880, 880-881 [2d Dept 2013]), other than its argument that a Workers’ Compensation defense can be raised at any time because it goes to the court’s subject matter jurisdiction. This is not the law, and State Farm does not cite to any authority that supports its position. In fact, the Appellate Term has held that the Workers’ Compensation defense is a precludable defense, meaning that it is waived if the insurance carrier does not timely deny the claim (see Paul Friedman v. Allstate Ins. Co., 51 Misc3d 129[A] [App. Term, 2d, 11th & 13th Jud. Dists 2016], citing Westchester Medical Center v. Lincoln General Insurance Co., 60 AD3d 1045, 1046-47; see also 11 NYCRR 65-3.5[a]; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Lenox Hill Radiology and MIA v. Global Liberty Ins. Co. of New York, 24 Misc3d 1225[A] [N.Y. Civil Ct. 2009]). If it is a precludable defense, it follows that it is not one that can be raised at any time.


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