American Tr. Ins. Co. v Diakite

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American Tr. Ins. Co. v Diakite 2012 NY Slip Op 30664(U) March 7, 2012 Supreme Court, Nassau County Docket Number: 9390/11 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: HON. DENISE L. SHER Acting Supreme Cour Justice TRILIIAS PART 31 AMERICAN TRANSIT INSURANCE COMPANY Plaintiffs NASSAU COUNTY Index No. : 9390/11 Motion Seq. No. : 01 Motion Date: 02/08/12 - against - LAMINE L. DIAKITE , ST. LUKES/ROOSEVELT HOSPITAL CENTER, DR. TAREK MARDAM- BEY DR. STEVEN M. YAGER , DPM , F ACF AS and DHD MEDICAL , P. Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affrmation and Exhibits Affirmation in O osition and Exhibits Affirmation in Reply Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves , pursuant to CPLR 3215 , for entry of a default judgment against defendants St. Lukes/Roosevelt Hospital Center (" St. Lukes ), Dr. Tarek Mardam- Bey Mardam- Bey ) and Dr. Steven M. Yager , DPM , FACFAS (" Yager ), ordering, adjudging and decreeing that said defendants are not entitled to no- fault coverage for the motor vehicle accident that occured on March 9 , 2010. Defendant Lamine L. Diakite (" Diakite ) opposes the motion. Defendants St. Lukes , Mardam- Bey, Yager and DHD failed to submit any opposition to [* 2] the motion. Initially, plaintiff indicates that the instant matter has been discontinued as to defendants Diakite and DHD. Plaintiff proves jurisdiction over defendants St. Lukes , Mardam- Bey and Yager by anexing copies of the Affidavits of Service of the Summons and Verified Complaints upon said defendants. See Plaintiff s Affirmation in Support Exhibit 2. Plaintiff states that more than thirt days have elapsed since the Sumons and Complaint were served upon the aforementioned defendants and said defendants have failed, refused and neglected to serve an Answer upon plaintiff or otherwise appear in this action. Plaintiff submits that it provided a policy of insurance to its insured , Soutra Limousine Inc. , under a New York policy of insurance numbered CAP608686. Said insurance policy provided Soutra Limousine , Inc. a no- fault endorsement which provided coverage to an insured or an eligible injured person in the amount of at least $50 000. 00 for all necessar expenses resulting from a motor vehicle accident. Said policy was in effect on March 9 , 2010. On that date , defendant Diakite was allegedly involved in a motor vehicle accident and made claims , as purorted eligible injured person of the above referenced insurance policy, to plaintiff under claim number 757972- 02. As a result of the aforementioned motor vehicle accident , defendant Diakite sought no- fault benefits from defendants St. Lukes , Mardam- Bey, Yager and DHD. Defendant Diakite assigned his right to collect no- fault benefits to defendants St. Lukes Mardam- Bey, Yager and DHD. Plaintiff contends that defendant Diakite has independent rights to collect no- fault benefits in his own right. Plaintiff furter submits that , on July 29 2010 , it sent defendant Diakite a letter , at the address stated on the application for benefits , requesting that he attend an Examination Under 2- . ,' [* 3] Oath (" EUO") on August 30 , 2010 , at a cour reporting center. Defendant Diakite failed to attend the duly scheduled EUO. On September 3 2010 , plaintiff sent defendant Diakite a letter to at the address stated on the application for benefits , requesting that he attend an EUO on September 17 2010 , at a court reporting center. Defendant Diakite failed to attend the duly scheduled EUO. On September 27 2010 , the claim was denied based upon defendant Diakite failure to attend the aforementioned duly scheduled EUOs. All of defendant Diakite s providers bils were denied on September 27 2010. Those bils received after September 27 2010 were denied within thirt days from the receipt of the paricular bil. Plaintiff argues that defendant Diakite s failure to attend the scheduled EUOs absolves it from providing coverage to the defendants. The failure to attend two EUOs is a violation of a condition precedent to coverage and allows plaintiff to disclaim coverage to an eligible injured person and to his assignees , retroactive to the date of the loss. Defendant Diakite , a minor born on October 12 , 1998 , submitted an Affrmation in Opposition opposing a default judgment being entered against defendants St. Lukes , MardamBey, Yager and DHD. Defendant Diakite argues that , even though the instant action has been withdrawn against him , if plaintiff is granted leave to enter a default judgment against defendants St. Lukes , Mardam- Bey, Yager and DHD then the Cour wil be effectively granting plaintiff permission to deny coverage to him. Defendant Diakite submits that , on March 9 , 2010 , at approximately 5:15 p. crossing 123 , he was Street in Manattan between Morningside and Amsterdam Avenues. He was walking from Morningside Park , returning to his school at the end of the day. As defendant Diakite was crossing the street , a cab driver struck him with his car , causing defendant Diakite to fall to the ground and suffer a fractured leg. Defendant Diakite further submits that the cab driver drove off without stopping, however witnesses chased after him and retrieved his license ," [* 4] plate number. A search of the license plate number was conducted and it was determined that the driver that struck defendant Diakite was an individual named Ibrahima Bakayoko who was driving a car owned by Soutra Limousine , Inc. and insured by plaintiff. Defendant Diakite contends that he submitted a No- Fault Claim with plaintiff under the name of " Lamine Diakite by his father and natural guardian, Mamadi Diakite. See Plaintiffs Affirmation in Support Exhibit 3. Defendant Diakite states that , due to the injuries he sustained as a result of the subject accident , he was treated by defendants St. Lukes , Mardam- Bey, Yager and DHD. Defendant Diakite argues that plaintiff addressed and mailed the alleged notices of the scheduled EUOs to the minor , defendant Diakite , and not to Mamadi Diakite as father and natual guardian of Lamine L. Diakite. See Plaintiffs Affrmation in Support Exhibit 3. Defendant Diakite furher argues that , since said notices were not addressed and mailed to Mamadi Diakite as the minor defendant Diakite s father and natural guardian, they are defective. See Both defendant Diakite and his father state that they never received the notices ofthe EUOs. Defendant Diakite s Affrmation in Opposition Exhibits F and G. Furhermore , counsel for defendant Diakite states that his offce never received said notices (even though they were allegedly mailed to his offce) until they were produced after the within lawsuit was commenced. Defendant Diakite contends that , as he has rebutted the presumption of proper mailing in this case , plaintiff canot deny coverage in this matter and the within motion must therefore be denied. Defendant Diakite ' s counsel adds ( f)urher , since A TIC (plaintiff) voluntarily discontinued the within action as against LAMINE L. DIAKITE , it canot possibly be granted any relief as against LAMINE L. DIAKITE. The relief A TIC seeks as against LAMINE L. DIAKITE' s treating healthcareproviders is derivative in natue to its claims against LAMINE L. DIAKITE , which were discontinued. Granting the leave ATICrequests against these treating healthcare providers would have the effect of granting judgment against LAMINE L. DIAKITE [* 5] after the claims against him have been discontinued. In reply, plaintiff argues that " (t)he first issue that is presented in this matter involves whether Defendant Diakite s attorney, Stefano A. Filipazzo , Esq. , has. standing to oppose this motion. Mr. Diakite is not a par to this action anymore , and his personal injur attorney upon this record does not represent any of the named Defendants. Mr. Diakite also has failed to implead himself in this matter. As such , the opposition must be denied based upon a threshold finding that personal injur counsel Filpazzo lacks standing. " Plaintiff next argues that assuming this Court wishes to grant Mr. Diakite non-pary standing, then the next questions is whether he has established a reasonable excuse and meritorious defense for the vacatur of the default. " Plaintiff further states assuming the Cour were inclined to examine the merits of the claim, it would be hard- pressed to find the existence of any merits. The application for benefits which is being reproduced herein , states that the address was 200 West 148th Street Apt. 2C , NY 10039. It was signed by the FIN/G' Mamadi Diakite.... The affidavits indicate that the letters were mailed to that address.... Alternatively, Defendant argues that he has a meritorious defense based upon the potential claim that the El!O letter s were sent to the minor child directly. Interestingly, if they were sent to the mother of the child, counsel would complain they should have been sent to the father because he has residential custody of the minor child. Alternatively, if the letters were sent to the father , counsel would complain that they should have been sent to the mother of the child because she has residential custody of the minor child. As a minor , the guardian is responsible for the well- being of the child. Thus , is it too much to ask for the parent to open up the mall of its minor child? Furthermore , since this child was 12 years old when the EUO process began , it would be reasonable for the child to open up the received mail." Even though plaintiff chose to discontinue the instant action against defendant Diakite because it " does not want a judgment entered against a 14 year old minor " the Cour finds that [* 6] the action against remaining defendants St. Lukes , Mardam- Bey and Yager is predicated upon the failure of the minor defendant Diakite to appear for scheduled EUOs. Plaintiffis seeking a declaration that defendants St. Lukes , Mardam- Bey and Yager are not entitled to no- fault coverage for the motor vehicle accident that occured on March 9 2010 due defendant Diakite failure to attend the scheduled EUOs. Clearly, defendant Diakite s Affrmation in Opposition is of import in this matter as it speaks to the merits of plaintiffs case or lack thereof. According, the Cour wil entertain defendant Diakite s Affirmation in Opposition. CPLR ~ 3215(f) states (o)n any application for judgment by default , the applicant shall file proof of service of the summons and ' complaint , or a sumons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 ofthis chapter andproofofthefacts constituting the claim the default and the amount due by affidavit made by the pary.... Where a verified complaint has been served , it may be used as the as the affidavit of facts constituting the claim and the amount due; in such case , an affidavit as to the default shall be made by the par or the part' s attorney (emphasis added). " Plaintiff submitted a copy of the Verified Complaint See as proof of the facts in the instant matter. Plaintiff s Affirmation in Support Exhibit 1. Paragraph 3 of the Verified Complaint begins " (a)t all times hereinafter mentioned , the defendant Lamine L. Diakite by his parent and natural guardian , Mamadi Diakite Plaintiffs Affrmation in Support See 3. The Cour notes that the Verified Complaint Exhibit 1 continues to refer to defendant Diakite as " the defendant Lamine L. Diakite by his parent and natural guardian , Mamadi Diakite. See Plaintiffs Affrmation in Support Exhibit I , 18 20. However, according to paragraph 21 of the Verified Complaint ( o)n July , 16 29 2010 American Transit Insurance Company (on behalf of Plaintiff AMERICAN TRANSIT INSURANCE COMPANY) sent to Lamine L. Diakite (and his/her 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 August 30 2010, at a court reporting center. See Plaintiff s Affirmation in Support Exhibit 21. Paragraph 23 of the Verified Complaint states [* 7] (o)n September 3 2010 , American Transit Insurance Company (on behalf of Plaintiff AMERICAN TRANSIT INSURANCE COMPANY) sent to Lamine L. Diakite (and his/her 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 September 17 2010 , at a cour reporting center. See Plaintiffs Affirmation in Support Exhibit 1 ~ 23. While plaintiff properly referred to the minor defendant Diakite as " the defendant Lamine L. Diakite by his parent and natural guardian , Mamadi Diakite. " in the earlier paragraphs of the Verified Complaint , when it came to mailing the notices for the EUOs plaintiff incorrectly addressed them to " Lamine L. Diakite , not to " Lamine L. Diakite by his parent and natural guardian, Mamadi Diakite " as have would have been proper. Mailing the EUO notices to a minor and not to his parent and natural guardian makes them defective. The minor defendant Diakite subsequent failure to report for the EUOs provided for in said notices is the basis for which plaintiff has brought the instant action and denied all coverage for the medical treatment received as a result of the subject accident. Basing this action on defective notices causes the Court to call into question the merit of instant action. The Cour finds that the "proof of the facts constituting the claim " to wit , the Verified Complaint , demonstrates that the minor defendant Diakite was not properly served with the notices to appear for an EUO. Therefore , his failure to do so canot be the basis for denying payment to defendants St. Lukes , Mardam- Bey and Yager and , in tu , bringing the instant action and asking for a default against said defendants. Furthermore , the Court finds plaintiff s argument Interestingly, if they were sent to the mother of the child , counsel would complain they should have been sent to the father because he has residential custody of the minor child. Alternatively, if the letters were sent to the father , counsel would complain that they should have been sent to the mother of the child because she has of residential custody of the minor child. As a minor , the guardian is responsible for the well- being of the child. Thus , is it too much to ask for the parent to open up the mail its minor child? Furthermore , since this child was 12 years old when the EUO process began , it would be [* 8] reasonable for the child to open up the received mail" to be incredible and completely without merit. Accordingly, based upon the facts before the Cour, plaintiffs motion ~ 3215 , for entry of a default judgment against defendants St. Lukes , pursuant to CPLR , Mardam- Bey and Yager ordering, adjudging and decreeing that said defendants are not entitled to no- fault coverage for the motor vehicle accident that occured on Marc 9, 201Qis hereby DENIED. Plaintiff is further ordered to serve proper notice for a scheduled EUO upon defendant Lamine L. Diakite by his parent and natural guardian , Mamadi Diakite. If defendant Diakite once again fails to instant appear for the scheduled EUO , plaintiff has permission from this Cour to renew this application. This constitutes the Decision and Order ofthis Cour. ENT RED Dated: Mineola, New York March 7 , 2012 MAR 0 9 2012 NASSAU COUNTY COUNTY CLERK' S OFFtCI 8- .

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