State Farm Mut. Auto. Ins. Co. v Lumpkin

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State Farm Mut. Auto. Ins. Co. v Lumpkin 2012 NY Slip Op 30827(U) March 26, 2012 Supreme Court, Nassau County Docket Number: 19871-I-10 Judge: Joel K. Asarch 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: I.A. PART 13 STATE FARM MUTUAL AUTOMOBILE INSURCE COMPANY, Plaintiff DECISION AND ORDER - against - Inde)C No: 19871- INDIVIDUAL DEFENDANTS ST ARSHA LUMPKIN ALPHONSO FOSTER KI HO KAG HONG IL UM Motion Sequence Nos: 001 and 002 Original Retu Date(s): 02- 1405-23- HEAL THCAR PROVIDER DEFENDANTS ADVANCED MEDICAL DIAGNOSTICS OF QUEENS, P. DEROSA ORTHOPEDIC SERVICES, P. IN ACUPUNCTURE and KM CARE, P. DR. TAK' S MEDICAL and REHABILITATION, P. SSM PHYSICAL THERAPY OF N. Y., P. c., Defendants. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 2 were submitted on ths Order to Show Cause on Februar 22 , 2011 , and the following papers numbered 3 to 5 were submitted on this Notice of Motion on May 23 2011: Papers numbered Order to Show Cause and Affrmation in Support Affdavit in Opposition Notice of Motion, Affirmation and Affdavit Affidavit in Opposition The motion (Seq. 001) brought by the plaintiff, by Order to Show Cause granted on the 28 [* 2] of Januar 2011 (Sher , J. ), for an Order of this Cour, pursuat to CPLR 2201 inter alia staying the action entitled DEROSA ORTHOPEDICS , P. C. AlAIO KIHO KAGv. STATE FAR MUTUAL AUTOMOBILE INSURANCE COMPANY (AA#41201004238) and all lawsuits and/or arbitrations arsing out of a March 26 , 2010 accident, pending a resolution of the within action for a declaratory judgment; and the motion (Seq. 002) by the plaintiff, STATE FAR MUTUAL AUTOMOBILE INSURANCE COMPANY , for a Judgment on Default against defendants KI HO KANG , HONG IL UM , ADVANCED MEDICAL DIAGNOSTIC OF QUEENS , DEROSA ORTHOPEDIC SERVICES , P. P. , and , are decided as follows: This action was commenced on October 21 , 2010 by the filing of the Sumons and Verified Complaint with the Nassau County Clerk' s office and the purchase of an inde)C number. The plaintiff seeks a declaratory judgment defining the rights and obligations of the paries under a policy of insurance allegedly issued to defendants ST ARSHA LUMPKI and ALPHONSO FOSTER whose vehicle was allegedly involved in an accident with a pedestrian on March 26 , 2010. An Amended Sumons and Amended Verified Complaint were fied with the Nassau County Clerk' Offce on Januar 5 , 2011 (amending the name of defendant ADVANCED MEDICAL DIAGNOSTICS , PC to ADV ANCED MEDICAL DIAGNOSTICS OF QUEENS , PC). The herein below named defendants have been duly and timely served with the (Amended) Sumons and (Amended) Verified Complaint in the instant action. With respect to the defendants against whom the plaintiff seeks a default judgment and in accordance with the affidavits of service fied in this action: a) ADVANCED MEDICAL DIAGNOSTICS OF QUEENS , P. C. was served with the Amended Sumons and Amended Verified Complaint pursuant to CPLR 311 on Januar 11 , 2011 [* 3] by serving a person allegedly authorized to accept service. Proof of service was filed with the Nassau County Clerk' s Offce on Januar 25 2011; 306 of the Business b) DeROSA ORTHOPEDIC SERVICES , P. C. was served pursuant to Corporation Law on October 27 2010 and proof of service fied on November 16 2010; c) HONG IL UM was personally served on October 27 2010 pursuant to CPLR 308(1); and d) KI HO KAG was served pursuant to CPLR 308(4) with service being attempted on three occasions at the defendant' s place of abode in Ridgefield , N ew Jersey, with affi)Cing being done on October 27 , 2010 , mailing within twenty days thereafter and proof of service having been filed with the Nassau County Clerk' s Office on November 16 2010. These defendants have failed to appear , answer, seek any e)Ctension of time to do so otherwise move this Cour for any relief herein. Neither have they opposed the instant motions. The action against defendants IN ACUPUNCTURE and KM CARE , PC , DR. TAK' S MEDICAL REHABILITATION , PC and SSM PHYSICAL THERAY OF N. , P. C. have entered into stipulations with the plaintiff waiving all claims and the within action has been discontinued against them. It is alleged that the plaintiff issued a policy of insurance (policy number 0949- 589-32A) to defendants ST ARSHA LUMPKI and ALPHONSO FOSTER covering a 2005 Mazda automobile. On March 26 2010 , an accident involving the defendant FOSTER' s vehicle and a parked 2003 Le)Cus automobile owned by defendant HONG IL UM occured in Manattan. While swerving to avoid another vehicle , defendant FOSTER hit the parked and unoccupied vehicle owned by defendant HONG IL UM. Subsequent to the alleged incident , defendant KI HO KAG , purortedly a pedestrian , alleged that he sustained injuries as a result of being strck by the plaintiffs insured' [* 4] vehicle. The pedestran alleged in his e)Camination under oath that after being struck by the defendant FOSTER' s vehicle , he rolled up on the hood of the plaintiff s insured' s vehicle , although it is alleged that there was no damage to the vehicle s front hood and/or windshield. Defendant FOSTER denied that his vehicle hit defendant KI HO KANG , nor did defendant KI HO KANG report being struck (and losing consciousness) to the investigating police offcer. The plaintiff also points to the defendant pedestran s traveling from New Jersey to Queens , New York , defendant medical providers. to be treated at the Plaintiff contends that this is the fifth claim since 1996 for injuries sustained to the same body pars by defendant KI HO KANG. The plaintiff contends "that the purorted automobile incident of March 26 2010 and the resulting claim of injuries by the defendant , KI HO KANG , are not the product of a covered event as defined" in the applicable policy of insurance herein. Defendant KI HO KAN G applied for N 0- Fault Benefits under the policy of insurance issued by plaintiff to defendants LUMPKI and FOSTER. Plaintiff alleges that any injuries sustained by defendant KI HO KANG were not as a result of the alleged accident and were fabricated by said defendant. Defendant KI HO KANG has not appeared in this action or answered the moving papers disputing any of the allegations raised by the plaintiff insurer . Plaintiff seeks a declaratory judgment that the incident of March 26 , 2010 is not a covered event as the motor vehicle of plaintiff s insured never came into contact with defendant KI HO KANG and as a result, plaintiff is under no obligation to pay any no- fault benefits to this defendant or to medical provider assignees as a result of this claim. Defendant KI HO KANG has sought arbitration of the claim , which was stayed by the aforementioned Order to Show Cause pending a determination of this motion. There is no opposition to the motion seeking to stay arbitration, despite the fact that the [* 5] motion papers were served upon defendants and notice of the temporar restraining notice was given to the attorneys for DEROSA ORTHOPEDIC SERVICES , PC in the aforementioned arbitration (as well as to the defendant). Therefore , based upon the foregoing and the default of the defendants as hereinafer set forth , the arbitration presently pending before the American Arbitration Association by DeROSA ORTHOPEDIC SERVICES , P. C. a/a/o KI HO KANG(AA#41201004238) is stayed. See , e. State Far Mut. Auto Ins. Co. v. Laguerre 305 A.D. 2d 490 (2 Dept. 2003). The fact that the defendants are in default of anwering or appearing does not necessarily lead to the entry of a default judgment. "Just because the cour has jursdiction over a defaulting defendant does not mean that a default judgment automatically results. Not only is proof of jursdiction and a default required on a motion for a default judgment, but also ' proof by affidavit made by the par of the facts constituting the claim ... and the amount due ' (CPLR 3215(e) ), Joosten v. Gale , 129 A.D. 2d 531 (1 st Dept. 1987). In support of its motion for a default judgment, the plaintiffhas established though affidavits of service that it properly served the Sumons and Verified Complaint on the defendants KI HO KANG and HONG IL UM against whom it seeks a default judgment pursuant to CPtR 308 , as well as the domestic and/or authorized foreign corporations against whom it seeks a default judgment pursuant to CPLR 311 or Business Corporation Law ~ 306 , and that none of those paries have appeared or otherwse sought relief in connection with this action. It has also established the merits of its claims. More specifically, it has established without opposition that the plaintiffs vehicle did not strke the defendant insured' KI HO KANG , as a result of which coverage under the aforementioned policy of insurance does not e)Cist with respect to the injuries claimed by defendant KI HO KANG.. See Andromeda Med. Care. P. C. v. NY Cent.Mut. Fire Ins. Co. , 26 Misc.3d 126(A) [* 6] (App. Term, 2 Jud Dist, 2009), citing Central Gen. Hosp. V. Chubb Group of Ins. Cos. , 90 NY2d 195 199 (1997). Accordingly, the plaintiffs unopposed motion for a default judgment against defendants KI HO KANG , HONG IL UM , ADVANCED MEDICAL DIAGNOSTICS OF QUEENS , P. C. and DEROSA ORTHOPEDIC SERVICES , P. C. is granted. It is therefore declared that the insurance policy issued to defendants ST ARSHA LUMPKI and ALPHONSO FOSTER does not cover the alleged incident of March 26 , 2010 involving defendant KI HO KANG. As a result thereof, the plaintiff has no duty to pay any monies or benefits to any of the defaulting defendants under the aforementioned policy of insurance in any action or proceeding brought to recover damages as a result ofthe alleged injuries sustained on March 26 , 2010 to defendant KI HO KANG or to provide coverage for any claims for no- fault or uninsured motorist coverage made by any of the defaulting defendants under the aforementioned policy in connection with the accident allegedly occuring March 26 , on 2010 and involving defendant KI HO KANG. Thus , after due deliberation , it is , on motion of BRUNO , GERBINO & SORIANO , LLP attorneys for the plaintiff, it is ORDERED , that the plaintiff s motions to stay arbitration and for a default judgment against the aforementioned defendants for the relief prayed for in the Amended Verified Complaint is granted as hereinabove stated; and it is fuher ORDERED , that the plaintiffs attorneys shall serve a copy of ths Decision and Order either personally or by first class mail upon all defendants served with the motion papers herein; and it is fuher ORDERED , that withn SIXTY (60)DA YS hereof, the plaintiff shall settle on notice a [* 7] Judgment herein pursuat to CPLR 3001. The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York March 26 , 2012 ENTER: OELK.ASARCH C. Copies mailed to: Bruo , Gerbino & Soriano , LLP Attorneys for plaintiff Economy & Economy, P. Attorneys for DeRosa Ortopedics in the underlying arbitration ENTERED MAR 28 2012 NASAU COUNTY COUNTY CLERK' S OfftCE

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