Progressive Specialty Ins. Co. v Albert

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Progressive Specialty Ins. Co. v Albert 2012 NY Slip Op 31326(U) May 7, 2012 Supreme Court, Nassau County Docket Number: 008542/11 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: LA. PART 13 - -- -x PROGRESSIVE SPECIALTY INSURANCE CO., Plaintiff - against - DECISION AND ORDER Index No: 008542/11 REGINALD ALBERT, LEON JOYETTE, CECILIA Motion Sequence No: 002 JOYETTE, FOREST DRUGS, MMC EMERGENCY Original Return Date: 02/07/12 PHYSICIAN, MMC RADIOLOGY FPP, ADVANCED MEDICAL CARE PC Individual Defendants ATLANTIC RADIOLOGY IMAGING, P. C., A VANGUARD MEDICAL GROUP PLLC, DOCTOR GOLDSHTEYN CHIROPRACTIC, P. , EAST MID WOOD VOLUNTEER AMBULANCE CORPS, INCORPORATED, MAIMONIDES MEDICAL CENTER, METROPOLITAN MEDICAL & SURGICAL P. c., MIND AND BODY ACUPUNCTURE, P. MODERN PSYCHIATRIC SERVICES, P. C., NEW QUALITY MEDICAL, P. , NEW WAY MEDICAL SUPPLY, CORP., ONE TO ONE REHAB P. T., P. C., PROFESSIONAL HEALTH IMAGING, P. C., and SOS MEDICAL SUPPLY , INC. Provider Defendants collectively, the Defendants. ---------------------- x PRESENT: HON. JOEL K. AS ARCH Justice of the Supreme Court The following named papers numbered 1 to 3 were submitted on this Notice of Motion on March 2012: Papers numbered Notice of Motion , Affirmation and Affidavit: Affidavit in Opposition [* 2] This unopposed motion by the Plaintiff, PROGRESSIVE SPECIALTYINSURANCECO. for an Order pursuant to CPLR 3215 , granting a default judgment against the Defendants REGINALD ALBERT , FOREST DRUGS , ADVANCED MEDICAL CARE PC , ATLANTIC RADIOLOGY IMAGING , P. , A VANGUARD MEDICAL GROUP PLLC , EAST MIDWOOD VOLUNTEER AMBULANCE CORPS , INCORPORATED , MAMONIDES MEDICAL CENTER METROPOLITAN MEDICAL & SURGICAL P. PROFESSIONAL HEALTH IMAGING , P. , MODERN PSYCHIATRC SERVICES , P. , and SOSMEDICAL SUPPL Y INC. , and setting the matter do-wn for a hearng on the issue of damages , is decided as follows: On June 9, 2011 , the Plaintiff commenced this action by fiing a Summons and Verified Complaint with the Nassau County Clerk' s offce. The Plaintiff is seeking a declaratory judgment declaring that the Plaintiff- insurer is not obligated to provide insurance coverage asa result on an incident allegedly occuring on August 4 , 2010. The Complaint alleges that the Plaintiff s insured REGINALD ALBERT , staged a motor vehicle " accident" some 22 days after the policy ofinsurance went into effect. The Complaint fuher alleges that the defendant REGINALD ALBERT and a passenger in the vehicle were arested for and charged with insurance fraud as a result of this accident" and that the Plaintiff had paid No- Fault benefits to medical provider assignees of Defendant ALBERT and the passenger(s). Despite requests from the Plaintiff, neither the Defendant driver (ALBERT) nor the two passengers attended Examinations Under Oath , although required to do so under the insurance policy as a condition for receiving No- Fault benefits. As par of its damnum clause , the Plaintiff seeks reimbursement from the Provider Defendants for such sums previously paid by the Plaintiff in connection with the August 4 , 2810 incident. Defendants LEON and CECILIA JOYETTE have answered the complaint (alleging that [* 3] Defendant ALBERT was the "mastermind" for the staged accident). The Plaintiff has discontinued the action against Defendants MMC EMERGENCY PHYSICIAN and MMC RAIOLOGY FPP. Furter, since the makng ofthis motion , Stipulations of Discontinuance have been filed with respect to claims against PROFESSIONAL HEALTH IMAGING , P. , FOREST DRUGS , A VANGUAR MEDICAL GROUP PLLC and METROPOLITAN MEDICAL & SURGICAL P. C. Finally, other Defendants have appeared in this action and are not the subject of this default motion (however, no Defendant contested the allegations submitted on this unopposed motion). On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint , proof of the facts constituting its claim , and proof of the defendant' s default" AD3d 1030 1032 (2 Dept. 2010); 649 (2 Integon Nat. Ins. Co. Dept 2011); (Triangle Props. v. see also, Atlantic Cas. Ins. Co. v. #2 LLC RJNJ Services, Inc., Narang, 73 89 AD3d Norterile 88 AD3d 654 , 655 (2 Dept. 2011)). As shown in Exhibit " D" to the moving papers , service was made upon the following Defendants against which a default judgment is now sought by serving the Secretar of Business Corporation Law 306 or Limited Liabilty 2011:ATLANTIC RADIOLOGY IMAGING , P. Company Law State pursuant to 303 on July 7 , EAST MIDWOOD VOLUNTEER AMBULANCE CORPS , INCORPORATED , MAIMONIDES MEDICAL CENTER , MODERN PSYCHIATRIC SERVICES , P. , and SOS MEDICAL SUPPLY , INC. Service was made upon Defendant ADVANCED MEDICAL CARE P. C. by leaving copies of the process with an agent authorized to accept process at the premises. A prior motion for a default judgment had been denied without prejudice by this Court by Decision and Order dated Januar 4 2012 based upon a lack of proof concerning proper service upon [* 4] defendant REGINALD ALBERT (see Exhibit " K" to moving papers). It now appears that service was made pursuant to CPLR 308(2) and 313 by delivering a copy of the process to a person of suitable age and discretion (defendant' s mother) at the defendant's Pennsylvania place of abode on June 30 , 2011 and a copy mailed to him at such address on July 8 , 2011. Proof of service was filed with the Nassau County Clerk' s Office on July 18 2011. The hereinabove named Defendants have been duly and timely served with the Summons and Verified Complaint in the instant action and have failed to appear , answer , seek any extension oftime to do so or otherwise move this Court for any relief herein. The medical provider Defendants , RADIOLOGY IMAGING , P. ADV ANCED MEDICAL CARE PC , ATLANTIC , EAST MIDWOOD VOLUNTEER AMBULANCE CORPS INCORPORATED , MAIMONIDES MEDICAL CENTER SERVICES , P. MODERN PSYCHIATRIC , and SOS MEDICAL SUPPLY , INC. claim to have rendered services to , and seek no- fault reimbursement for said services to Defendants REGINALD ALBERT , LEON JOYETTE and CECILIA JOYETTE arising out of the hereinabove described August 4 , 2010 incident. In support of its motion for a default judgment , the Plaintiffhas established through affidavits of service that it properly served the Summons and Verified Complaint on the Defendants against whom it now seeks a default judgment , additional notice has been given pursuant to CPLR 3215(f), 3215(g)(4)(i) and 3215(g)(4)(ii), and that none of those paries have appeared or otherwise sought relief in connection with this action. It has also established the merits of its claims. More specifically, it has established that as a result of the actions of the individual Defendants in creating the August 4 , 2010 incident and in failng to cooperate with the Plaintiff in its investigation of the claim(s), coverage under the policy of insurance issued to REGINALD ALBERT does not exist. [* 5] Accordingly, the Plaintiff s motion for a default judgment against Defendants REGINALD ALBERT , ADVANCED MEDICAL CARE PC , ATLANTIC RADIOLOGY IMAGING , P. EAST MIDWOOD VOLUNTEER AMBULANCE CORPS , INCORPORATED , MAIMONIDES MEDICAL CENTER , MODERN PSYCHIATRIC SERVICES , P. , and SOS MEDICAL SUPPLY , INC. is granted. The insurance policy issued to Defendant REGINALD ALBERT is null and void with respect to the aforementioned incident of August 4 , 2010 , as a result of which the Plaintiff has no duty to defend any ofthe defaulting Defendants under the aforementioned policy insurance in any action or proceeding brought to recover damages as a result of the incident of August 4 2010 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 . incident occurring on August 4 , 2010. In addition , the Plaintiff is entitled to reimbursement of any claims paid to or on behalf of any of the defaulting Defendants. Thus , after due deliberation , it is , on motion of McCORMACK AND MATTEI , P. attorneys for the Plaintiff ORDERED , that the Plaintiffs motion for a default judgment against the aforementioned Defendants for the relief prayed for in the Verified Complaint is granted as hereinabove stated; and it is further . ORDERED , that the above captioned action is herewith referred to the Calendar Control Par (CCP)of this Cour for an inquest to determine the Plaintiffs claim(s) for reimbursement compensatory damages , costs and disbursements of this action; and it is fuher. ORDERED , that subject to the approval of the Justice there presiding, and provided that a Note of Issue , together with a copy of this order , has been filed at least ten (10) days prior thereto [* 6] this matter shall appear on the Calendar of CCP for 9:30 a. m. on June 25, 2012. Failure of the Plaintiff to appear on such date or any adjoured date thereof shall result in the claim for damages and reimbursements against the above described Defendants being deemed abandoned; and it is fuer ORDERED , that the directive with respect to aninquest is subject to the Justice presiding in CCP to refer the matter to a Justice , Judicial Hearing Officer or a Court Attorney/Referee as he or she seems appropriate; and it is further ORDERED , that the Plaintiff s attorneys shall serve a copy ofthis Decision and Order either personally or by first class mail on or before May 21 2012 upon all Defendants against whom a default judgment was granted or who have appeared herein; and it is fuher ORDERED , that within SIXTY (60) DAYS ofthe determination of damages , the Plaintiff shall settle a Judgment herein pursuant to CPLR 3001. The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York May 7 , 2012 ENTER: Copy mailed to: McCormack & Mattei , P. Attorneys for Plaintiff ENTERED MAY 08 2012 MA&AU COUNTY COUNTY C\.IRt" OffiCE

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