Progressive Advanced Ins. Co. v McIntosh

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Progressive Advanced Ins. Co. v McIntosh 2012 NY Slip Op 32056(U) July 19, 2012 Supreme Court, Nassau County Docket Number: 4889/11 Judge: Jeffrey S. Brown 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] --F I' SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 17 PROGRESSIVE ADVANCED INSURANCE CO. INDE)( # 4889/11 Plaintiff, -againstMARK MCINTOSH, MICHAEL AUGUSTIN SHARICE TAYLOR, JOHN CAMERON , VIP CAR SERVICE INC., DANIEL JEAN FRANCOIS, TERRNCE GERALD GARRY, SHAWN WILTSHIRE, CHAKA GREEN, GERALDINE VITA, MARIA A. VITA, HENRY CLAUDE DORCE , ANDREW DOWD, M. D., (Individual Defendants) ALL ABOUT REHABILITATION & P. T., P. c., B. Y., D., P. c., BONNE SANTO INC., CITY CARE ACUPUNCTURE, P. c. E)(CEL IMAGING, P. c., HEAL ME MEDICAL, P. C., INNOVATIVE VIEW MEDICAL, P. c., KARINA K. ACUPUNCTURE, P. c., LMK PSYCHOLOGICAL SERVICES, P. c., MEDI)( SURGICAL SUPPLY, INC., MK CHIROPRACTIC, P. C., NAQIY MEDICAL SERVICES, P. c., OASIS PHYSICAL THERAPY, P. c., OMEGA DIAGNOSTIC IMAGING, c., ONE OF THE BEST , INC., PARKWAY SUPPLIES, INC., PERFECT POINT ACUPUNCTURE, P. c., QUALITY MEDICAL SUPPLY INC., QUALITY PSYCHOLOGICAL SERVICES, P. c., QUALITY SERVICE SUPPLIES INC., QUEST SUPPLY, INC., SEARAY MEDICAL, P. c., SERENITY ANESTHESIA c., TIMBER CHIROPRACTIC, P. c., (Provider Defendants) collectively, the Defendants. Motion Seq. 2, Motion Date 6. 22. Submit Date 7- [* 2] -------------------------------------------------------------- ----------------------------------------------------------------- ----===================================================================== The following papers were read on this motion: Papers Numbered Notice of Motion , Cross Motion Affidavits (Affirmations), Exhibits Annexed... Answering Affidavit............................................................................................. Reply Affidavit...................................................................................................... Plaintiff moves by notice of motion for the following relief: an order pursuant to CPLR 3212 granting summary judgment against defendants BY , M. D. P. , CITY CARE ACUPUNCTURE P. , MK CHIROPRACTIC , P. , OASIS PHYSICAL THERAPY , P. , and QUALITY PSYCHOLOGICAL SERVICES , P. Defendants BY , M. D. P. C, CITY CARE ACUPUNCTURE P. , MK CHIROPRACTIC c., OASIS PHYSICAL THERAPY , P. C. cross-move pursuant to CPLR 3212 granting summar judgment dismissing the complaint as interposed against them. The cour notes that defendant QUALITY PSYCHOLOGICAL SERVICES, P. C. has not submitted any papers with respect to this application. The plaintiff contends that shortly after issuing an automobile insurance policy to its insured , defendant Mark McIntosh , the insured vehicle was involved in two deliberately 48, 49). In essence , the two losses staged" accidents in Brooklyn , New York (Cmplt. occurred within the first two months on the same McIntosh policy, within two weeks of each other and in close proximity to McIntosh' s residence. After conducting an investigation into the accident , plaintiff commenced the within declaratory judgment action , alleging in substance that since the accidents had been staged , the policy was void and/or it was no longer contractually obligated to pay benefits thereunder. Plaintiff now moves for summary on its staged accident theory. The defendants BY , M. D. P. , CITY CARE ACUPUNCTURE P. , MK CHIROPRACTIC , P. OASIS PHYSICAL THERAPY , P. , have opposed the application and cross-move for summary judgment dismissing the compliant insofar as interposed against them. Preliminarily, the court notes that a prior judgment of default has already been entered in this action as against certain defendants (Brown , 1. , 9/6/11) and discontinued as against certain defendants. In support of its application , plaintiff submits the following documents: policy declaration page; no- fault applications for Michael Augustin , Sharice Taylor , John Cameron , Terrance Gerald Garr, Shawn Wiltshire and Chaka Green; police reports; correspondence requesting an examination under oath (hereinafter " EUO" ) of Michael Augustin , John Cameron , and Chaka [* 3] Green; EUO transcripts of Sharice Taylor , Terrance Gerald Garry, and Shawn Wiltshire. Plaintiff argues that there are multiple discrepancies in the Garry and Wiltshire EUOs and that Augustin , Cameron and Green did not appear for their properly noticed EUOs. Additionally, plaintiff states that through its investigation , it obtained a written statement of the named insured McIntosh , which contradicted the statements of Garr and Wiltshire in their EUOs. A deliberate collision caused in furtherance of an insurance fraud scheme is not a Eagle Ins. Co. 293 AD2d 751 (see Matter of Metro Med. Diagnostics covered accident v. Laguerre 305 A.D. 2d 490 491 , 759 N. Y.S. 2d 531 (2002))" (State Farm Mut. Auto. Ins. Co. (2003)). Upon review of the documentation presented , the court finds that plaintiff has prima facie entitlement to judgment as a matter of law by demonstrating that the established its collisions occurring on July 8 , 2010 and July 17 2010 were deliberately caused to fraudulently obtain insurance benefits. Approximately a month and a half after the McIntosh policy went into effect , the insured' s vehicle was involved in a loss with a 2002 car service vehicle in Brooklyn , New York. The McIntosh vehicle was operated by defendant Augustin , with passengers defendant Taylor and defendant Cameron. Approximately nine days after the first loss occurred on the McIntosh policy, the insured' vehicle was involved in another loss with a 2007 Toyota , in Brooklyn , New York. The McIntosh vehicle was operated by defendant Garry with passengers Wiltshire and Green. Plaintiff submitted a notarized sworn statement of defendant Mark McIntosh which , in sum and substance , the following: that he did not know or ever heard of a Terrance stated Gar a/k/a " cash , or a guy named " Eric ; that he never gave the vehicle to use other than to Augustin; that he is only aware of the accident that took place on 7/17/1 0 as was advised by Michael Augustin; that regarding the accident dated 7/8/1 0 , he was not aware of the loss details nor does he know Terrance Garr, Shawn Wiltshire or Chaka Green. In contrast , defendant Garr testified at his EUO that he is also known by the name Cash" ; that he knew defendant McIntosh for a long time; that he always sees him in his area; that he knew McIntosh owned the vehicle; and that McIntosh' s friend gave him permission to use the vehicle on the date of the loss. The court finds that the EUO transcripts of defendants Taylor , Garry, and Wiltshire are admissible evidence on this application as they were certified by the court reporter and are (see R. M Newell Co. , Inc. v. Rice 236 AD2d 843). considered party admissions The court finds that the testimony taken of these defendants at the EUOs contained various inconsistencies which give rise to a presumption that the losses were staged. The very fact that there is a contradiction of whether the insured and the driver knew each other before the [* 4] incident supports plaintiffs argument. Moreover , defendants Augustin , Cameron and Green did not appear for their EUOs despite being properly notified. In opposition to the application for summary judgment and in support of the crossmotion , defendants BY , M. D. P. , CITY CARE ACUPUNCTURE P. , MK CHIROPRACTIC , P. , OASIS PHYSICAL THERAPY , P. C. submit an attorney affirmation and a copy of the verified pleadings. The courts have long adhered to the rule that the party opposing a summary judgment motion must submit sufficient evidence , in admissible form , to (Zoldas Louise Cab Corp. 108 AD2d 378 , 383) or to establish that there is a triable issue City of New York, 49 (Zuckerman explain why a proper tender of proof is not being made NY2d 557 P988)). Defendants failed to adhere to such requirements here. Counsel' Zuckerman 271 A.D.2d 586; v. (Morissaint affirmation has no probative weight and cannot raise a triable issue City of New York supra; Philips Raemar Corp. Louise Cab Corp. supra , at Zoldas 269). Nor is counsel' affirmation suffcient to establish summar judgment in defendants ' favor. The cour requires an affidavit by someone with personal knowledge of the facts to attest that the subject losses were 383; Rue Stokes, 191 AD2d 245; Johnson v. 261 A. D.2d not intentionally staged. Accordingly, it is ORDERED , that plaintiffs application pursuant to CPLR 3212 granting summary judgment as against defendants BY , M. D. P. , CITY CARE ACUPUNCTURE P. , MK CHIROPRACTIC , P. , OASIS PHYSICAL THERAPY , P. , and QUALITY PSYCHOLOGICAL SERVICES , P. , is GRANTED; and it is further ORDERED , that defendants ' BY , M. D. P. , CITY CARE ACUPUNCTURE P. c., MK CHIROPRACTIC , P. , OASIS PHYSICAL THERAPY , P. , cross-motion for summary judgment is DENIED. The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. 1\. Dated: July 19 2012 1:: Gvfr IN! FREY S. BROWN , JSC TERED 27 JUL MA& AU 2012 UU" I . COUNTY CU!RK' I OfFICE [* 5] Attorney for Plaintiff McCormack & Mattei , P. 1035 Stewart Avenue , 2 & 3 Floor Garden City, NY 11530 516- 505- 0(j00 Attorney for Defendants B.Y. , M. , City Care Acupuncture , P. MK Chiropractic , P. C. and Oasis Physical Therapy, P. Melissa Betancourt , Esq. 155 Kings Highway, 3 Floor Brooklyn , NY 11223

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