American Tr. Ins. Co. v Randolph
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American Tr. Ins. Co. v Randolph 2012 NY Slip Op 31666(U) June 14, 2012 Supreme Court, Nassau County Docket Number: 012755/11 Judge: Randy Sue Marber 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 OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARER TRIAL/IAS PART 14 JUSTICE AMRICAN TRANSIT INSURNCE COMPANY Index No. : 012755/11 Plaintiff Motion Sequence.. . Motion Date.. . 03/23/12 -against- VICTOR T. RANDOLPH , AZUR ACUPUNCTUR , EMPIRE CITY LABORITIES, INC. , EXCEL IMAGING , P. , FISS CHIROPRACTIC , P. , FIVE BORO PSYCHOLOGICAL AND LICENSED MASTER SOCIAL WORK SERVICES , PLLC. GAETANE PHYSICAL THERAY, P. , LINEN MEDICAL CAR , P. , M&M MEDICAL , P. , SAS MEDICAL , P. , UNITED MEDICAL OFFICES OF LONG ISLAND , P . , WESTCAN CHIROPRACTIC , WIOLLA MEDICAL SUPPLY , INC. Defendants. Papers Submitted: Notice of Motion (Mot. Seq. 01)....................... Order to Show Cause (Mot. Seq. 02)....................... Affirmation in Opposition............ ...... Affirmation in Opposition........................................ Supplemental Opposition......................................... Reply Affirmation.................................................... Upon the foregoing papers , the branch of the Plaintiff, AMRICAN TRANSIT INSURNCE COMPANY' s (" American Transit" ) motion (Mot. Seq. 01), [* 2] seeking an order pursuant to RANDOLPH , 3215 against the Defendants CPLR AZUR ACUPUNCTUR, P. EXCEL IMAGING , THERAPY , P. MEDICAL , P. , EMPIRE CITY LABORITIES , INC. , FISS CHIROPRACTIC , , LINEN MEDICAL CAR, P. P. VICTOR T. P. GAETANE PHYSICAL , M&M MEDICAL , UNITED MEDICAL OFFICES OF LONG ISLAND , WESTCAN CHIROPRACTIC , SAS P. P. C. (hereinafter collectively referred to as " P. C. and Defaulting Defendants ), ordering, adjudging and decreeing that the Defaulting Defendants are not entitled to no- fault coverage for the motor vehicle accident that occurred on January 22 2011 based upon the Defendant, VICTOR T. RANDOLPH' s failure to attend properly scheduled IME' s; and the branch of the Plaintiffs motion (Mot. Seq. 01), seeking an order pursuant to CPLR 3212 against the Defendants , FIVE BORO PSYCHOLOGICAL AND LICENSED MASTER SOCIAL WORK SERVICES , PLLC. and WIOLLA MEDICAL SUPPLY , INC. , ordering, adjudging and decreeing that said Defendants are not entitled to no- fault coverage for the motor vehicle accident that occurred on January 22 , 2011 , based upon similar grounds , is decided as hereinafter provided. The Plaintiff also moves by Order to Show Cause (Mot. Seq. 02), seeking: (i) an order pursuant to CPLR 1003 , granting the Plaintiff leave to serve the complaint on Synergy First Medical Group, PLLC and Shaker Hils Medical Diagnostic , the grounds that the absence of said proposed additional defendants wil P. , upon prevent complete [* 3] relief from being accorded between the parties and inequitably affect the interests of the Plaintiff in the above-entitled proceeding; (ii) an order pursuant to ~ 2201 , staying any and all arbitrations and any and all lawsuits that have been brought in courts of competent jurisdiction , pending the outcome and determination of this action; and (iii) an order Plaintiff a preliminary injunction , pursuant to ~ 6301 , granting the Defendants from commencing, prosecuting or proceeding on any commencing, prosecuting or proceeding on any enjoining the arbitrations or lawsuits pending in any court of competent jurisdiction , pending the outcome and determination of this action. The Order to Show Cause is decided as hereinafter provided. At the heart of this action is a motor vehicle accident that occurred on January 22 , 2011. The Plaintiff, American Transit , provided a policy of insurance to its insured , Njie Ousman , included a no- fault under policy number BYA800141. The policy of insurance endorsement which provided coverage to an insured or an eligible injured person in the amount of at least $50 000. 00 for all necessary expenses resulting from a motor (See The policy was in effect on January vehicle accident. Affirmation in Support of Motion The Defendant , 22 , 2011. 26- 27) Victor T. Randolph , was involved in the subject motor vehicle accident and made claims as a purported eligible injured person under the policy of insurance issued by the Plaintiff , American Transit. review of the motion papers (Id. at 28) It appears from a that the Defendant , Victor T. Randolph , sought no- fault [* 4] accident on January 22 , benefits in connection with the Defendants. The corporate Defendants wil Provider Defendants . Victor T. 2011 from the corporate be collectively referred to herein as the Randolph ultimately assigned his rights to collect no- fault benefits to the Provider Defendants. According to the Plaintiffs counsel , the Provider Defendants have commenced actions against the Plaintiff or have the right to commence actions and/or arbitrations against the Plaintiff for purportedly overdue noAffirmation in Support of Motion , ~~ 29- 32) The Plaintiff, in turn (See fault benefits. commenced the instant action seeking a default judgment against all the non-appearing Defendants and summary judgment as against the appearing Defendants. Further , the Plaintiff also seeks a declaratory judgment against all of the named Defendants. The Court wil first address the Plaintiff s motion seeking a default judgment as against the non-appearing Defendants. par may seek a default judgment against a defendant who fails to make See an appearance. CPLR ~ 3215 (a). On an application for a default judgment , the moving par must present proof of service of the summons and complaint, affidavits setting forth the facts constituting the claim , the default , and the relief requested. The moving part must defaulting part. Joosten also make a prima facie showing of a cause of action v. against the Gale 129 A. D.2d 531 (lst Dept. 1987) Based upon the documentation submitted in support of the motion for a default judgment , it appears that the Plaintiff caused the summons and complaint to be [* 5] served upon the Provider Defendants via the Secretary of State pursuant to Business (See Corporations Law ~ 306. Affidavits of Service , attached to the Plaintiffs Notice of Motion as Exhibit " ) The Plaintiff failed to attach , however , mailing pursuant to CPLR ~ 3215 (g) (4) (i). an affidavit of additional While the Plaintiff attempts to cure this defect in its Reply Affirmation , additional evidence in admissible form submitted for the first time in a Reply wil not be considered by this Court. In any event , the additional evidence attached to the Plaintiffs Reply Affirmation is plainly insufficient. The Plaintiff attached an Affidavit of Service (Exhibit 3215 (g) (4), indicating ) to the Reply Affirmation purporting to comply with CPLR that the Provider Defendants were mailed a copy of the summons and complaint. The deficiency in the Affidavit is that it fails to attach a notice advising the corporations that service of the summons and complaint was previously made pursuant to BCL 9 306. Further, the Affidavit fails to show that the mailng was completed at least twenty (20) days before the Plaintiffs application for the default judgment. To the contrary, the Affidavit states that the summons and complaint was mailed to the Provider Defendants on July 29 2012 2012 , (See , a date which has yet to occur. attached to the Plaintiffs Affidavit of Service , dated July 29 Reply Affirmation as Exhibit " ) In light of the foregoing deficiencies , the branch of the Plaintiff s motion seeking a default judgment against the Provider Defendants , Azure Acupuncture , P. Excel Imaging, P. , Fiss Chiropractic , P. , Empire City Laborities , Inc. , Gaetane Physical Therapy, P. , Linden [* 6] , M&M Medical , P. , SAS Medical , P. C, United Medical Offices of Medical Care, P. Long Island , P. C. and Westcan Chiropractic , P. , is DENIED. The Plaintiff also failed to attach to its moving papers an Affidavit of Service indicating that service of the summons and complaint was effectuated upon the individual Defendant, Victor T. Randolph. The Plaintiff s counsel also attempts to cure said defect in its Reply Affirmation by attaching an Affidavit of Service thereto. The Plaintiffcannot establish its entitlement to a default judgment by attaching evidence to its reply papers to cure defects contained within the Plaintiffs Acupuncture, P. Districts); Canter c. v. v. 2d 487 (App. Term 2d & 11th Jud. State Farm Ins. Co. 836 N. 270 A. D.2d 381 (2d Dept. East Nassau Med. Group, Accordingly, the branch of the North moving papers. 2000). Plaintiffs motion seeking a default judgment as against the Defendant , Victor T. Randolph , is DENIED. The Plaintiff s motion also seeks summar judgment , pursuant to CPLR ~ 3212 , as against the Provider Defendants , Five Boro Psychological and Licensed Master Inc. Social Work Services , PLLC ("Five Boro ) and Wiolla Medical Supply, (" Wiolla Summary judgment is sought based upon the Defendant , Victor T. Randolph' s failure to appear at Independent Medical Examinations (" IME" ) for which he properly noticed. The Plaintiff s counsel states that Victor T. was allegedly Randolph was mailed notices regarding the scheduled IME' s to an address that was listed on his application for benefits. (See Affirmation in Support of Motion , ~ 34; see also IME Letters attached to [* 7] The Plaintiff contends that it may deny the Plaintiffs Notice of Motion as Exhibit " an insured' s citing to claim retroactively to the date of loss for a claimant' s failure to attend IME' Stephen Fogel Psychological, Pc. v. Progressive Cas. Co. 35 A. D.3d 720 (2d Dept. 2006). The Plaintiff is required to establish prima facie that it mailed the IME (Id. at 721) In notices to Victor T. Randolph and that he failed to appear for the IMEs. , the mail support of the motion , the Plaintiff submitted the affidavit of Luis Campbell room supervisor for the Plaintiff. Campbell sets forth the mailng procedures utilzed by the Plaintiff. Campbell also states that " based on these procedures , the correspondences were mailed on the dates set forth in the letters Plaintiff also submitted (See Campbell Affidavit , ~ 10). The the Affidavit of Sandra Joseph , a no- fault examiner for the Plaintiff. Joseph , in her affidavit , sets forth the Plaintiff s procedures in connection with denial of claim forms. She further states in her affidavit that the request for additional verification , as attached to the Plaintiff s motion , bin document she generated in duplicate form. (See is a true and accurate Joseph Affidavit , timely denial was issued, printed , placed in an envelope , sealed and then collected by Luis Campbell for mailng. (Id. copy of the ~ 8) Joseph states that a , placed in the mail at ~~ 16- 17). In further support of the Plaintiffs contention that the notices were mailed to Victor T. Randolph is an affidavit from Lynn Hershman , establishing that the IME notices were in fact mailed to him , along with affidavits from the IME doctors confirming [* 8] (See Affidavits of Milot Thalrose and Brian Wolin , attached to the that Victor T. Randolph failed to appear on the scheduled IME dates. Lynn Hershman , Dr. Michael Plaintiffs Notice of Russ , Motion) Based upon the evidence in admissible form submitted by the Plaintiff, it has established prima facie that IME notices were mailed to the Defendant , Victor T. Randolph , and that he failed to appear for Ins. Co. 29 A. Ins. Co. 3d 547 , 547- 548 284 A. 2d 374 , (2006); them. New York Hospitalfor Joint Diseases Presbyt. Hosp. v. v. Allstate Nationwide Mut. 375 (2001). Notably, the affidavits of Campbell and Joseph fail to specify the claimant by name. The statements in the affidavits generally reference the notices and denial claim form that were presumably sent to Victor T. Randolph. Notwithstanding, the evidence submitted by the Plaintiff is sufficient to satisfy its facie prima burden that the Plaintiff was notified of the IME' s and failed to appear for same. The burden now shifts to the appearing Defendants , Five Boro and Wiolla to raise an issue of fact. First , with respect to the denial of the claim submitted by Five Boro , counsel states that the denial is fatally defective in that it omitted numerous items of requested information. Counsel for the Defendant , Five Boro , cites to several cases that support its argument that a timely denial is required for a valid condition precedent defense. Second , the denial counsel also argues that the denial of Five Boro s claim is defective as states that the bils were denied on the ground that the services were not medically necessary. The Plaintiff failed to deny the claim based upon" the ground that [* 9] Victor T. Randolph failed to appear for scheduled IME' , thereby, only preserving the Denial of Claim Form , dated June 14 , 2011 , attached (See defense of medical necessity. to the Defendants ' Opposition to the Notice of Motion as Exhibit " N ext , with respect to the denial of claim submitted by the Defendant Wiolla , counsel contends that the denial of claim form is similarly defective in that it fails to state that Victor T. Randolph failed to appear for scheduled IME' s. of claim form Rather , explicitly states that the Defendant failed to appear (See Examinations Under Oath. the denial for scheduled Denial of Claim Form , dated May 16 , 2011 , attached to the Defendants ' Opposition as Exhibit " Counsel for the Defendants , Plaintiffs denial of Wiolla also states that the s claim is also defective as untimely. Specifically, counsel states that the Plaintiff received the bil more than thirt Five BorQ and Wiolla , on March 9 , 2011 and denied it on May 16 , 2011 (30) days after its receipt of the claim. Counsel further contends purportedly un- preserved defenses , that should the Court entertain the Plaintiffs the Plaintiff stil failed to prove that the IME letters were timely and properly mailed , that the claimant failed to appear and that the claimant wilfully refused to attend IME' s or never appeared. In support of its argument , counsel for the Defendants , Five Boro and Wiolla , contends that Victor T. Randolph was not residing at the address listed on the IME letters at the time the IME letters were sent to him. Counsel submitted a [* 10] Supplemental Opposition , annexmg thereto an Affidavit from Victor T. Randolph wherein he states that he did not receive any of the IME notices as indicated by the Plaintiff. According to Randolph' s Affidavit , he received medical services from Five Boro and Wiolla. At the time of the accident , Randolph resided at the address listed on the IME notices , 91 Boerum Street , Apt. l1K , Brooklyn , NY 11206. However , Randolph states in his affidavit that in or about the end of January, 2011 or beginning of February, 2011 , he moved to 30 Manhattan Avenue , Apt. 2A , Brooklyn , NY 11206. Randolph also states that had he received the letters requesting his appearance at medical examinations (See he would have attended them. Randolph Affidavit, dated February 9 , 2012 , attached to the Defendants ' Supplemental Opposition as Exhibit " In Reply to the Defendant , Five Boro and Wiolla s opposition , the Plaintiff s counsel states that there were a few reasons as to why the bils were denied from said providers but that "the within declaration of non-coverage , however , seeks said declaration based upon the failure of Defendant Randolph to appear (for) his IME' Reply Affirmation , ~ 7) Citing to Unitrin Advantage Ins. Co. v. (See Bayshore Physical Therapy, PLLC 82 A. D.3d 559 (1t Dept. 2011), counsel for the Plaintiff avers that an insurer may retroactively deny claims on the basis of the defendants ' assignors ' failure to appear for (IME' s) requested by plaintiff, even though the plaintiff initially denied the claims on the ground of lack of medical necessity. [* 11] Based upon the record contained herein , questions of fact exist concerning the Defendant , Victor T. Randolph' s receipt of the IME notices and whether knowingly and wilfully failed to attend any scheduled examinations. Counsel for the Defendants , Five Boro and Wiolla , submitted sufficient evidence tending to show that eligible injured person , Victor T. Randolph , did not reside at the address listed on the IME notices and that had he received said notices , he would have appeared for any scheduled examination. Accordingly, the Plaintiff did not meet its " heavy " proving wilful and avowed obstruction on the part of the Defendant , Victor T. Randolph as a matter of law , thus precluding the Plaintiffs motion for V. General Acc.lPG Ins. Co. of NY. 273 A. D.2d 766 Pediatrics 237 A. burden of 2d 772 , 773- 774 (1997); Ingarra summary judgment. , 767 (2000); Tleige Cerrone 184 A. Wolford v. Troy 2d 833 833- 834 (1992). The Court wil next address the Plaintiffs Order to Show Cause seeking (i) leave to serve the complaint upon Synergy First Medical Group, PLLC (" Synergy First" and Shaker Hils Medical Diagnostic , P. C. (" Shaker Hils ), (ii) an order staying any and all arbitrations and any and all lawsuits that have been brought in courts of competellt jurisdiction , and (ii) an order granting the Plaintiff a preliminary injunction , enjoining the Defendants from commencing, prosecuting or proceeding on any arbitrations or lawsuits pending in any court of competent jurisdiction , pending the determination of this action. [* 12] With respect to the Plaintiffs request seeking leave to serve the complaint upon additional parties , counsel for the Plaintiff contends that the absence of First and Shaker Hils wil Synergy prevent complete relief from being accorded between the parties in this proceeding and that the Plaintiff may be inequitably affected if a judgment was entered in this action. According to the Plaintiff, the Defendant also received medical services from Synergy Affirmation in Support of Order to Synergy First and Shaker Hils First and Plaintiffs (See Shaker Hils. Show Cause , ~~ 11- 12) subsequently , Victor T. Randolph Based upon said services commenced arbitration proceedings against , American Transit , in connection with the accident on January 22 , 2011. (See the Plaintiff Arbitration Request Form, attached to the Plaintiffs The Plaintiff s counsel Order to Show Cause as Exhibit " contends that Synergy First and Shaker Hils would not be prejudiced by the amendment of the compla nt. Permission to amend pleadings should be " freely given (b). The decision discretion. Murray to allow or disallow the v. 43 N. City of New York, See CPLR ~ 3025 amendment is committed to the court' 2d 400 , 404- 405 (1977). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side... Edenwald Contr. Co. v. City of New York 60 N. 2d 957 (1983) It appears from the documentation presented that the alleged facts in amended complaint, annexed to the Plaintiffs Order to Show Cause as proven true , could subject Synergy the Exhibit " , if First and Shaker Hils to liabilty. The amendment [* 13] sought by the Plaintiff is not palpably improper or insufficient as a matter Accordingly, the branch of the Plaintiffs Order to of law. Show Cause seeking leave to serve the amended complaint as annexed to its moving papers upon Synergy First and Shaker Hils is GRANTED. The Plaintiff s Order to Show Cause also seeks a stay of all arbitrations and lawsuits. " The part seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a stay Matter of Liberty Mut. Ins. Co. v. preliminary issue which would justify the Morgan 11 A. D.3d A court has broad discretion to grant a stay 615 , 616 (2d Dept. 2004). in order to avoid the risk of adjudications , application of proof and potential waste of judicial resources Jeromack 150 A. 2d 561 , inconsistent Zonghetti 563 (2d Dept. 1989). Here , the Plaintiff s counsel submits that there is a question whether certain conditions precedent to coverage were violated , to wit , the Defendant , Victor T. Randolph' s attendance at scheduled IME' , and thus , it has the right to have this issue determined prior to the matter being arbitrated. (See Plaintiff s Affirmation in Support of Order to Show Cause , ~~ 40- 42) With respect to the pending arbitration proceedings commenced by some the named Defendants herein , the Plaintiff failed to of seek a stay of arbitration within twenty (20) days after service upon it of the arbitration notice or demand pursuant to CPLR 97503 (c). The Plaintiff is not alleging that the parties ' agreement to arbitrate is at [* 14] Issue. In such cases, the twenty (20) day limitation is essentially treated as a statute of See Matter of Steck limitations. 89 N. (State Farm Ins. Co.), 2d 1082 (1996). The Court finds , in its sound discretion, that the facts presented in this case do not warrant a stay of all proceedings pending the determination of this action. Moreover , nowhere in the Plaintiffs papers does it state what arbitrations it seeks to stay. There are no index numbers or AA numbers set forth in order for this Court to issue a stay even if a stay was warranted. The Court cannot and wil not stay hypothetical cases. Likewise , the Court wil not render an advisory opinion with respect to future arbitrations that may be filed. Finally, the Plaintiffs request for a preliminary injunction , enjoining the Defendants from commencing, prosecuting or proceeding on any arbitrations or lawsuits is also based upon its failure to demonstrate , by clear and convincing evidence DENIED a likelihood of success on the merits , irreparable injury, or that a balancing of the equities favors the movant's position. The affidavit of Victor T. Randolph establishes that his nonappearance at any scheduled IME' s was neither wilful nor intentional. In fact , the Defendant indicated that he would have attended the IME' s had he received the notices. Accordingly, it is hereby ORDERED that the branch of the Plaintiffs motion (Mot. Seq. 01), seeking an order pursuant to RANDOLPH , CPLR ~ 3215 against the Defendants AZUR ACUPUNCTUR, P . VICTOR T. , EMPIRE CITY LABORITIES , INC. [* 15] EXCEL IMAGING , THERAY , P. MEDICAL , P. P. , FISS CHIROPRACTIC, P. , LINEN MEDICAL CARE, P. GAETANE PHYSICAL , M&M MEDICAL , SAS P. UNITED MEDICAL OFFICES OF LONG ISLAND, P. C. WESTCAN CHIROPRACTIC , Defendants are not entitled to P. , ordering, adjudging no- fault and decreeing and that said coverage for the motor vehicle accident that occurred on Januar 22 , 2011 based upon the Defendant , VICTOR T. RANDOLPH' failure to attend properly scheduled IME' , is DENIED; and it is further ORDERED that the branch of the Plaintiffs motion (Mot. Seq. 01), seeking an order pursuant to CPLR ~ 3212 , against the Defendants , FIVE BORO PSYCHOLOGICAL AND LICENSED MASTER SOCIAL WORK SERVICES , PLLC. and WIOLLA MEDICAL SUPPLY , INC. , ordering, adjudging and decreeing that said Defendants are not entitled to no- fault coverage for the motor vehicle accident that occurred on January 22 , 2011 , based upon the Defendant , VICTOR T. RANDOLPH' failure to attend properly scheduled IME' , is DENIED; and it is further ORDERED that branch of the Plaintiff s Order to Show Cause (Mot. Seq. 02), seeking an order pursuant to CPLR ~ 1003, granting the Plaintiff leave to serve the complaint on Synergy First Medical Group, PLLC and Shaker Hils Medical Diagnostic , upon the grounds that the absence of said proposed additional defendants wil prevent complete relief from being accorded between the parties and inequitably affect [* 16] the interests of the Plaintiff in the above-entitled proceeding, is GRANTED; and it is further ORDERED , that the Plaintiff shall serve a copy of the Amended Summons and Complaint , as annexed to its moving papers as Exhibit " , upon Synergy First Medical Group, PLLC and Shaker Hils Medical Diagnostic , P. C. in accordance with the CPLR, and upon all appearing Defendants , by serving their counsel pursuant to CPLR 9 2103 (b) (1), (2) or (3), within twenty (20) days of the date of this Order; and it is further ORDERED , that the branch of the Plaintiffs Order to Show Cause (Mot. Seq. 02), seeking an order (i) pursuant to ~ 2201 , staying any and all arbitrations and any and all lawsuits that have been brought in courts of competent jurisdiction , pending the outcome and determination of this action and (ii) pursuant to 9 6301 , granting the Plaintiff a preliminary injunction enjoining the Defendants from commencing, prosecuting or proceeding on any arbitrations or , commencing, prosecuting or proceeding on any lawsuits pending in any court of competent jurisdiction, pending the outcome and determination ofthis action , is DENIED; and it is further ORDERED , that Plaintiffs counsel shall serve a copy of this Order upon the Defaulting Defendants by certified mail , return receipt requested , and all appearing parties or their counsel , by regular mail. WITH THE COURT ; and it is further PROOF OF SERVICE MUST BE FILED [* 17] ORDERED , Conference (See that the parties are directed to appear for a Preliminary 22 NYCRR ~ 202. J2) at the Preliminary Conference Part , located on the lower level of the Nassau County Supreme Court on August 2, 2012 at 9:30a. m. This directive , with respect to the date of the Conference , is subject to the right of the Clerk to fix an alternate date should scheduling require. This constitutes the decision and order of the Court. DATED: Mineola , New York June 14 2012 Hon. Ra ue Marber, J. N1e.REO e. "ri 1\) 15 '1111 C\. eOU"Ti 0"'-
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