Interboro Ins. Co. v Dawkins

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Interboro Ins. Co. v Dawkins 2012 NY Slip Op 30242(U) January 17, 2012 Supreme Court, Nassau County Docket Number: 6908/11 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 4 NASSAU COUNTY INTERBORO INSURANCE COMPANY Plaintiff, -against- MOTION DATE: 10/19/11 MOTION SEQ. NO. : 001 INDEX NO. : 6908/11 ROSETTA DAWKINS MERIT ACUPUNCTURE, P. AVENUE C MEDICAL, P. HARONY CHIROPRACTIC, P. PROFESSIONAL HEALTH IMAGING, P. TOTAL MOBILITY, P. Defendants. The following papers read on this motion (numbered 1): Notice of Motion For Leave To Enter A Default Judgment......... Plaintiff INTERBORO INSURANCE COMPANY moves pursuant to CPLR 3215 for a default judgment against defendants MERIT ACUPUNCTUR, P. MERIT" ), AVENUE C MEDICAL , P. C. ("AVENU C" ), PROFESSIONAL HEALTH IMAGING , P. C. (" PHI" ) and TOTAL MOBILITY , P. C. (" TOTAL MOBILITY" ) (collectively, the " Provider Defendants ). Plaintiff purports to have discontinued the action as against its insured , defendant ROSETTA DA WKINS DAWKINS" ), and defendant HARMONY CHIROPRACTIC, P. C. ("HARONY" The Court has received no opposition to this motion. Pursuant to this Par' s Rules , namely Rule I(B), the Court automatically adjourns all motions that are submitted without opposition for one month, to determine whether or not there was either an administrative delay or excusable neglect. Such adjournment is made without prejudice to the moving party to have the merits of such an adjournent considered in the event that there is a subsequent submission. This is a declaratory judgment action in which plaintiff seeks a determination that it is not obligated to provide No Fault benefits to DAWKINS or to her assignees or health care providers , paricularly the Provider Defendants , in connection with a motor vehicle accident that allegedly occurred on December 8, 2010 (the "Accident"). Plaintiff admits that DA WKINS was insured on the date of the Accident , but claims that coverage was [* 2] vitiated by the failure ofDA WKINS to appear for an Examination Under Oath("EUO" which is a prerequisite to coverage under the applicable policy of automobile insurance and insurance regulations. Plaintiff s counsel claims to have sent three letters by Certified Mail , Return Receipt Requested , and by regular mail , to DAWKINS at the address provided in her claim for No Fault benefits , requesting her appearance at an EUO on 2/1 0/11 , 2/25/11 and 3/11/11, respectively. According to plaintiffs counsel , DAWKINS failed to appear on all of the scheduled dates. Counsel states that on March 21 , 2011 , plaintiff denied DA WKINS' claim for No Fault benefits and all of the Provider Defendants ' bils. Counsel claims that all bils received thereafter were denied within 30 days of receipt. Plaintiff now moves for a default judgment based upon the failure of all of the Provider Defendants to answer or otherwise appear in this action. In support of its motion , plaintiff submits: (i) the Affirmation in Support by its attorney, dated August 4 2011 (the "Attorney Affirmation ); (ii) a copy ofthe Sumons and so-called Verified Complaint (with no copy of the verification); (Hi) Affidavits of Service, attesting to service of the Summons and Complaint upon A VENU C , HARMONY, PHI and TOTAL MOBILITY by delivery to the New York Secretary of State pursuant to Business Corporation Law ~306; (iv) Copies ofletters dated Januar 26 2011 , Februar 14 2011, and Februar 24 2011, which were purportedly sent to DAWKINS for purpose of notifying her of the scheduled EUOs; (v) Affirmation ofplaintiffs attorney, which is not dated (the " Undated Affirmation ); and (vi) Affidavit ofplaintiffs Claim Representative sworn to on August 4 2011 (the "Party Affidavit" At the outset , the Court notes an irregularity in this application that raises the Court' s concern. Every document submitted to the Court (including the Attorney Affirmation), which purports to bear, or is required to bear , the signature of plaintiffs counsel , Jason Tenenbaum , Esq. , is either unsigned or contains an ilegible and unformed marking that is not only non-uniform , but is clearly and largely different on each document. In view of the recent , well- publicized "robo-signing " scandal , the Court finds that this renders the attorney s signature questionable and the entire application suspect. Apar from the foregoing, the Court finds that the proof is inadequate. First plaintiff fails to provide proof of service of the Summons and Complaint upon MERIT. Accordingly, no default judgment may be granted against that defendant. The service upon the remaining Provider Defendants pursuant to Business Corporation Law 306 is valid for purposes of jurisdiction , but plaintiff fails to show additional service pursuant to 3215(g)( 4). This alone is sufficient to defeat the application for a default judgment. CPLR [* 3] Second , plaintiff fails to show proof of service of the Notice of Motion upon DA WKINS or HARONY , or to demonstrate that such service was not required. There is no proof that either of these defendants were in default. The RJI indicates that issue was not joined with respect to DAWKINS, but it is silent with respect to HARONY. either case , insofar as the RJI is unsigned , it is devoid of probative value. Further plaintiff fails to provide proof of service of the Summons and Complaint upon DA WKNS. Without such proof, her default cannot be established. Presumably, DA WKINS and HARMONY were not served with this motion because plaintiff purports to have discontinued the action as against these defendants. Plaintiff fails to show however, that the purorted discontinuance has been effected in accordance with CPLR ~3217. Absent proof of a proper and effective discontinuance , it is incumbent upon plaintiff to demonstrate service of this motion upon DAWKINS and HARMONY , or to show that such service was not required. Plaintitfhas done neither. is perfunctory. Although unopposed , this motion may be granted only upon right to declaratory Merchants Insurance Company of New Hampshire Inc. v. Long Island Plaintiffs proof of the merits plaintiff s demonstration of a relief. prima facie See Pet Cemetery, 206 AD2d 827; Mount Vernon Fire Ins. Co. v. NIBA Construction Inc., 195 AD2d 425; Joosten v. Gale, 129 AD2d 531. See also CPS Group, Inc. v. Gastro Enterprises, Corp. , 54 AD3d 800. The standard of proof set fort in Joosten and progeny is not stringent. At minimum , however, some firsthand confirmation of the facts is required. Joosten v. Gale , 129 AD2d at 535. Plaintiff fails to meet this burden. The Attorney s Affirmation is replete with boilerplate. For example , the affirmation recites: " On 1/26/11 , The Law Office of Jason Tenenbaum , P. C. (on behalfofPlaintiffINTERBORO INSURNCE COMPANY) sent to Rosetta Dawkins (and hislher attorney if one was retained) at the address stated on the application for benefits a letter requesting that he/she attend an Examination Under Oath ('EUO' ) on 2/25/11 , at a court reporting center. " Attorney s Affirmation, ,- 19. See also , 17 , 18 , 21 26. This type oflanguage , coupled with the dubious signature at the very least raises questions regarding the personal knowledge ofthe purported affirmant. , 15 The Part Affidavit and Undated Affirmation speak only to the general practices of plaintiff and plaintiff s counsel with respect to the mailng of application is devoid of first- hand testimony or substantiating EUO notices. The documentation regarding the attempt to secure DAWKINS' attendance at the EUO. There is no mailng address on the EUO notice was the current and valid address evidence that the plaintiff does not provide a copy of the application for benefits which ofDA WKINSallegedly contains [* 4] this address, or any other documentar proof. Furher plaintiff does not provide a copy of the Certified Mail Return Receipt or any other evidence showing the result of the mailng - i.e. , whether anyone signed for the letter or whether it was returned unclaimed. In the face of insufficient proof of notice, DA WKINS' inaction does not support an inference that she knowingly or deliberately breached her obligation to appear for an EUO. Based upon the foregoing, and particularly in view of the specter of unreliability permeating this application , the Court finds that plaintiff is not entitled to the relief sought. Accordingly, it is ORDERED , that plaintiffs motion for a default judgment pursuant to CPLR 3215 is denied. Plaintiff shall serve a copy of this Order upon all defendants within ten (10) business days of entry, and shall fie proof of such service with the Court , on or before any further application in this matter. This constitutes the Order of the Court. Dated: /fy ENTERED JAN 24 2012 NASSAU COUHTY COUNTY CLER'K' S OFFICI

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