National Cont. Ins. Co. v Henry

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National Cont. Ins. Co. v Henry 2012 NY Slip Op 30251(U) January 23, 2012 Sup Ct, Nassau County Docket Number: 2513/11 Judge: Denise L. Sher 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] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: DENISE L. SHER Acting Supreme Cour Justice HaN. NA TIaNAL CaNTINNT AL INSURCE COMPANY Plaintiff Index No. 2513/11 Motion Seq. No. : 02 Motion Date: 11/04/11 - against - RICHAR HENRY , EARL JaSEPH , PATRICK MaRRS SHORN THaMPSaN , LLaYD KEMP , KERVINS ST. JEAN, SHAWNELLE aTTLEY , SALIM ANTaINE CHRISTOPHER TARY, PANCITa D. ELLIS RaBINSON V. ELLIS , KEVIN LIBERT , RACHUEL LIBERT , KIMBERLY LIBERT , KELLY ANN LIBERT SHAWN QUAMIA (" Individual Defendants -and- ARICA ACUPUNCTURE , P. , B. C. CHrRaPRACTIC BARaN LEA, INC. , BIG APPLE CHIROPRACTIC , BEST HEALTH ACUPUNCTURE, P. , BETH ISRAEL MEDICAL CENTER, BaNNE SANTa , INC. , CHT , BRaMER MEDICAL , P. 80RISGILZQN BRQQ.KDALE ERPHYS DEPT. , BRaaKDALE HQSPITAL, 8QE ACUPUNCTURE , P. , CANARSIE BROaKLYN MEI)ICAL HEALTH, P . , CLEARVIEW OF MitDICAL , P . , caRNELIA PAIMANAGEMENT caVE CHIRaPRACTIC , P. , DaSHI DIAGNOSTIC IMAGING SERVICES, P. , DUMONT MEDICAL DIAGNaSTICS , P. , FDNY EMS , GBI ACUPUNCTURE C. DAVIS , GIANNA MEDICAL, P. C., GaRDaN MEDICAL , P. C., GREAT HEALTH CARE CHIRaPRACTIC P. , HARVAR MEDICAL , P. TRIL/IAS PART NASSAU COUNTY KAA ACUPUNCTURE , P. , KDM CHIRaPRACTIC & DIAGNaSTIC , P. , KIGS CaUNTY HOSPITAL CENTER LENca DIAGNaSTIC LABaRATaRlES , INC. , L.N. [* 2] REHAILITATION PHYSICAL THERAPY, P. , M & M MEDICAL , P. C., MEDISYS AMBULANCE SERVICE , INC. MOBILITY EXPERTS MEDICAL , P. , NEW CAPITAL SUPPLY, INC. , NEW WAVE CHIROPRACTIC, P. STAR NitWWAY MASSAGE THERAY, P, NaRTH MEDICAL, RC. , OMEGA DIAGNaSTIC IMAGING , P. C., POWER SUPPLY, INC. , PROGRESSIVE aRTHOPEDICS SEACOAST PLLC SANLI ACUPUNCTURE, P. MEDICAL, P. , SK PRIME MEDICAL SUPPLY, INC., SKILMAN MEDICAL DIAGNaSTICS , P. , SMQ MEDICAL , P. , SP CHIRaPRACTIC. P. , SPEEDY WAY PT, P. , STAND Up MRI OF BROOKLYN , P. SUNRISE ACUPUNCTURE , P. , THERAEUTIC SOLUTIaNSMASSAGE THERAPY , P. , TaTAL BODY DIAGNaSTICS , P. , ULTIMATE HEALTH PRQPUCTS, INC. , UNIVERSAL REHAB PT, P. and YORK WQQQHUI.LMEDICAL CARE, ANESTHESIOLOGISTS , PLLC("Provider Defendants Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affrmation Affidavit and Exhibits Affrmation in apposition by Defendant Lloyd Kemp Affnnation in apposition by Defendants GBI Acupunctue. P . C. and Great Health Care Chiropractic. P. Reply Affrmation Upon the foregoing papers , it is ordered thatthemotioll isdeckled as follows: Plaintiff moves , pursuat to CPLR 3212 , for an order granting it sumar judgrentas to defendants LIQyd Kemp (" Kemp ), GBI Acupunctue , PC ("GBI") and Great Health.Care Chiropractic ("Great Health Care ); and moves for an order granting an Inquest on reimbursement with respect tQ same. Defendants Kemp, GBI and Great Health Care oppose the motion. This is an action for declaratory judgment, pursuant to CPLR 3107(b), defining and [* 3] declaring the rights , duties , obligations and legal relationship by and between plaintiff and defendants. Plaintiff submits that it issued an in,surance policy to defendant Richard Henr (" Henr under policy number 04500415- 0. propert damage claims Said policy provides liabilty coverage for bodily injur and brought against the covered persons , mandatory personal injur protection for eligible persons (" no- fault benefits ) and unnsured motorist coverage as a result of an accident. Said policy went into effect on Januar 4 2010 , and three losses then occured on said policy within the span of three months. Plaintiff states that " uJpon information and belief, these losses were intentionally staged accidents ' to defraud NATIONAL and the public at large. Defendant Kemp was involved in the second of the thee alleged" intentionally staged accidents. " Said automobile accident occured on August 3, 2010 , at or near the intersection of Empire Boulevard and New York Avenue in Kings County, New York. The accident involved defendant Henr s insured vehicle and another. vehicle driven by defendant Pancito D. Ells with passenger defendant RobinsonV. Ellis. Defendant Shorn Thompson was the alleged driver of defendant Henr s insured vehicle with defendant Kemp in said vehicle as a passenger. Plaintiff submits that " (oJn 1 notarzed statement regarding the loss of he did not give defendant vehicle on 8/3/1 SHaRN 0 defendant RICHARD HENRY gave a signed and 0/14/1 8/3/10. Defendant RICHA HENRY stated that: (a) THaMPSaN permission to drive the NATIONAL insured O. (b) that approximately one (1) week before such loss , his vehicle waS in Jermaine s shop for trany repair. ' (c) that on 8/1110 Jermaine retued the car to defendat RICHA HENRY' s girlfrend and that the car key was placed in a glass jar by RICHA ,' [* 4] HENRY' s girlfriend in defendant RICHA HENRY' s home. (d) Defendant RICHA HENRY was not at home at the time , but defendant SHORN THOMPsaN was at defendant RICHAR HENRY' s home as defendant SHORN THaMPSON had lived with defendant RICHARD HENRY ' from time to time since 2004. ' (e) defendant SHORN THOMPSON took his vehicle without permission. (f) he did not know of the 8/3/1 0 loss until he was notifed by the insurance company. (g) defendant SHaRN THOMPSaN never informed him of such loss, Defendant RICHARD HENRY then went on to state that, from speaking to other people who know defendant SHaRN THaMPSaN , defendant SHaRN THOMPSON is known to stage motor vehicle accidents.... Defendant RICHARD HENRY denied knowing defendant LLOYD KEMP , and stated that , from what he knows, defendant LLaYD KEMP is a friend of defendant SHaRN THaMPSON. Plaintiff fuher submits that, on November 2 2010 , it conducted an Examination Under Oath ("EUO" ) of defendant Kemp. During said EUa, it waS revealed that " (a) LLOYD KEMP was at a ' check cashing place ' and intended to go from there to his mother s house, OnCfJ outside such ' check cashing place ' he attempted to hail a taxi cab. (b) The NATIONAL insured vehicle pulled up along side defendant LLaYD KEMP and defendant LLOYD KEMP asked You a taxi?' to which the driver ofthe NATIaNAL insured vehicle replied, ' 'Yeah, ' The driver of the NATIONAL insured vehicle , whom defendant LLaYD KEMP claimed he had never seen before, wa$ defendant SHaRN THOMPSaN. (c) Defendant LLaYD KEMP paid defendant SHORNTHaMPSaN eight (8) dollars for the ride. (d) Defendant LLOYD KEMP stated that he believed defendant SHaRN THaMPSaN had fallen asleep and that is what led to the loss. Plaintiff argues that defendants Kemp, GBI and Great Health Care have provided nothing whatsoever to contradict the undisputed facts as set forth in the Verified Complaint and the [* 5] Affidavit of Gar Lamay, a Senior Medical Representative employed by plaintiff (offered in support of the instant motion) as to the obvious seriousness of the intentionally caused losses that are the subject of this action. Plaintiff contends th t "based upon the uncontroverted evidence herein that there is no issue of fact to prevent this Cour from issuing an order granting sumar judgment to Plaintiff in ths matter as to answering defendants LLOYD KEMP , GBI ACUPUNCTURE , PC, and GREAT HEALTH CARE CHIROPRACTIC. " Plaintiff submits that (iJt is well settled that the carier is entitled to defendant any claim at any time where there is a lack of coverage defense premised on the fact or founded belief that the alleged injur does not arise out of an insured incident' even where no denial was issued.... An ' accident' that was a deliberate event caused in the fuherance of an insurance fraud scheme is not a covered eVent." il opposition to the motion , defendant Kemp argu s that " (iJn an attempt to show that plaintiff NATIONAL CaNTINNTAL INSURANCE COMPANY is entited to sumar judgment, Plaintiff NATIONAL CaNTINENTALINSURACE COMPANY' s Gounsel relies on a seri s of incredible and self-serving statements made by Plain,tiffs NATlaNAL CaNTINENTAL INSURACE CaMPANY' s insured, defendMtRICHARD HENRY Cld anotherins1.ed , Charain Edomonson. First, with respect to the motOr vehicle accident on August 3 , 2010 , in which defendant LLOYD KEMP Was seriouslyinjuied, defendant RICHARD HENRY allegedly stated that he did not give permission to defendant SHORN THOMPSaN to drve his car on that day. However, defelldant RICHAR HENRYavered (sic) that defendant SHORN THaMPSaN ' lives with him from time to time ' and therefore has access to his home and presumably his car. Vehicle & Traffc Law Section 388(1) holds the owner of a Vehicle is liable for the negligence of any person using or operating the vehicle with the permission express or implied of the owner. " Defendant Kemp adds that defendant Richard Henr never [* 6] reported his car stolen onthe date at issue to either the police deparment or plaintiff, his insurance company. Defendant Kemp also contends that it is clear from his EUO testimony that he did not know defendant Shorn Thompson, nor defendant Richard Henr, nor had he met defendant Shorn Thompson at any time prior to the alleged date of the subject accident. Defendant Kemp states that " (b Jased on Defendant LLaYD KEMP' s testimony and in the absence of any admissible evidence to the contrar, it is clear that from Defendant LLaYD KEMP' s perspective the incident on August 3 , 2010 was unexpected and unintended event. Defendant LLaYD KEMP sustaned seriou$ personal injuries and was a victim rather than perpetrator. Defendants GBI and Great Health Care also oppose the instat (mJissing from Plaintiffs motion. They argue that motion are any facts concerning The Rybal Defendants (defendants GBI and Great Health CareJ to the scenarios set forth in Plaintiffs motion. Such missing iIlormation includes inter alia: whether The RybakDefendaft submitted cla4stoplaintiff cribed motor vehicle losses; which losses The Rybak Defendants ' claims related to the des. concerned; which persons assigned their benefits to The Rybak Defendants regarding such claims; the dates on which such claims were received by Plaintiff; whether PlaintiffissuedNFdenial of claim forms regarding claims submitted by The Rybak Defendants; the dates on which such NF - 1 Os were mailed; and proof of timely and proper rnailngof such NF - 1 Os. Therefore even assuring arguendo, that Plaintiff established that the described motor vehicle losses were intentionally staged , Plaintiff has submitted no proof whatsoever that The Rybak Defendants have any connection whatsoever to such intentional losses. Thus , for example , not having demonstrated that The Rybak Defendants submitted any claims regarding these losses, Plaintiff canot be entitled to sumar judgment as against The Rybak Defendants. [* 7] Defendants GBI and Great Health Care fuer contend that " in order to disclaim coverage on the basis that the underlying collsion was not an ' accident,' and that therefore Plaintiff need not provide coverage to the assignor in this matter , Plaintiff would have to demonstrate that The Rybak Defendants submitted claims as an assignor of someone that was a par to the alleged intentional nature of the collsion, Here, not only has Plaintiff failed to establish though admissible evidence that the collsion was intentional on the par of a paricularized person who is alleged to have assigned his or her benefits to The Rybak anyone Defendants , Plaintiff has failed to establish through admissible evidence that intentionally caused the described losses. Plaintiff s motion mainly relies upon alleged discrepancies in te timony a.lleged given in statements and at examinations underoath.... Since Plailltiff motion is supported by nothing more than speculation concernng meaningless (sic) alleged discrepancies , Plaintiff has failed to demonstrate as a matter of law that the described losses were fraudulent and not covered events. It is well settled that the proponent of a motion for sumar prima facie judgment must make a showing of entitlement to judgment as a matter of law by providing suffyient evidence to demonstrate the absence of material issues of fact. Fox Film Corp" 3 N. Y.2d 320, 508 N, Y.S.2d 595 (1980); 2d 395, 165 N. Y.S. 2d 498 (1957); 2d 923 (1986); Bhatti v. Zuckerman Roche 140 A. v, See Silman Alvarez v, v, Twentieth Century- Prospect Hospital, City of New York 49 N. Y.2d 557, 427 2d 660 528 N. S.2d 1020 (2d Dept. 1988). To obtain sumar judgment , the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the cour , as a matter of law, to direct judgment in the movant's favor. Mfrs. , Inc. 46 N. Y.2d 1065 416 N. Y.S. 2d See Friends of Animals, Inc. 790 (1979). Such evidence v. Associated Fur may include deposition [* 8] transcripts , as well as other proof anexed to an attorney v. Olan 64 N. Y.2d 1092 489 N. Farrell Lines Inc. 3212 (b); CPLR S.2d 884 (1985). showing is demonstrated, the burden then shifts to the prima facie If a suffcient See s affrmation. non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of See Zuckerman judgment and necessitates a tral. Y.S. 2d 595 (1980), v, sum City of New York 49 N. Y.2d 557 , 427 When considering a motion for sumar judgment , the fuction supra. of the cour is not to re$olve issues but rather to determine if any such material issues of fact exist. v, See Silman 3N. Twentieth Century- Fox Film Corp" 2d 498(1957), 2d 395, 165 N. re conclusions or unsubstantiated allegations are insufficient to raise a trii1bleissue. supra. Federal Ins. Co. 70 N. v. See Gilbert Frank Corp. 2d 966 , 525N. 2d 793 (1988). Furher, to grant sumar judgment, it must cleatlyappeat. that no material triable issue of fact is presellted. The burden on the cour in deciding this type ofmotiClnis not to resolve issues of fact or determine matters of credibilty, but merely todetermn whether sllch issues v, exist-Seeliarr Johnson., 50 N. Y.2d 247 , 428N. Albany County, )7, 147 A. D.2d 312 543 N. Y.S. 2d 987 (2dDept.1989). Itis tbe existence of an issue , not its relative strength that is the critical and controllng cOllsideration. Y. 520 (1931); Cross v, Cross 112 A.D.2d62, See Barrett 491 N. Y$.2d353 21 A. 2d 156 249 N. v. Jacobs , 255 (Ist Dept. 1985), The evidence should be constred in a light most favorable to the par moved Garfield, Daliendo 2d665 (1980); against. See Weiss 2d 458 (3d Dept. 1964). Plaintiff, in its motion, has demonstrated primafacie entitlement to sumar judgment against defendants Kemp, GBI and Great Health Care. Therefore , the burden shifts to defendants Kemp, GBI and Great Health Care to demonstrate issues of fact which preclude sumar [* 9] judgment. v, See Zuckerman 2d 595 (1980). City of New York 49 N. Y.2d 557 , 427 N. Y.S, After applying the law to the facts in this case , the Cour finds that defendants Kemp, GBI and Great Health Care have meet their burden to demonstrate an issue of fact which precludes sumar judgment. The Cour finds that there are issues of fact with respect to the accident involving defendant Kemp and whether it was indeed par of the alleged " intentionally staged accidents, " The Cour is asked to determine that said accident was one of the " staged accidents " based upon the conflcting testimony of defendant Richard intentionally Henr, the actual insured , and the other named defendants involved in the subject accidents. The testimony of defendant Kemp raises issues with respect to the accident in which he was an alleged victim, In rendering a decision on a sumar judgrent motion, the Cour is not to resolve issues of fact or , no reference determine matters of credibilty. With respect to victims GBI and Great Health Care plaintiff s instat motion. As stated in whatsoever was made to these specific defendants in (mJissing from Plaintiffs motion are any defendants OBI and Great Health Care s opposition, " facts concernng The Rybak Defendants (defendantsGBI and Great Health Care J to the scenaros set forth in Plaintiff s motion!' The Cour fuher notes that the case cited by plaintiff in its reply affirmation v. Laguerre, 305 A.D. 2d 490 , 75 9 N. Y.S. 2d State Farm 531 (2d Mutual Automobile Insurance Company Dept. 2003), is not exactly like the case at bar, as alleged by plaintiff. In fact , it is diffcult to State Farm Mutual Automobile determine from said decision precisely whatthe facts were in the Insurance Company v, Laguerre matter. Said decision does state that " ( w Jithn weeks after the , the plaintiff issued insurance policies for vehicles registered to the defendant Jacques Laguerre vehicles were involved in three collsions. " Said decision does not detail how plaintiff demonstrated that the accident in question in that case was one of three collsions deliberately [* 10] caused to fraudulently obtain insurance benefits. Accordingly, plaintiffs motion , pursuant to CPLR ~ 3212 , for an order granting it sumar judgment as to defendants Kemp, GBI and Great Health Care and for an order granting an Inquest on reimbursement with respect to same is hereby DENIED. It is fuer ordered that plaintiff and defendants Kemp, GBI and Great Health Care shall appear for a Preliminar Conference on Februar 22 2012 , at 9:30 a. , at the Preliminar Conference Desk in the lower level of 100 Supreme Cour Drive, Mineola , New York , to schedule all discovery proceedings. A copy of this order shall be served on all paries and on DCM Case Coordinator. There wil be no adjourents , except by formal application pursuant to 22 NYCRR 125. This constitutes the Decision and arder of this Cour. Dated: Mineola, New York Januar 23 2012 ENTERED JAN 25 2012 MAI.AU COUNTY oeIT OLIR" OFfICE 10-

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