American Tr. Ins. Co. v Rodriguez

Annotate this Case

Download PDF

American Tr. Ins. Co. v Rodriguez 2013 NY Slip Op 33292(U) December 13, 2013 Supreme Court, New York County Docket Number: 151205/2013 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/20/2013 1] INDEX NO. 151205/2013 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/20/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY A. PRESENT: HpN. ~ C. SINGH ~~JJM' IU8TJCB PART (; / Index Number: 151205/2013 AMERICAN TRANSIT INSURANCE INDEX N O . - - - - - vs MOTION DATE _ _ __ RODRIGUEZ, GRISELIDA MOTION SEQ. NO. _ __ Sequence Number: 001 DEFAULT JUDGMENT ~tle toilowing papers: numbered 1 to _ _ , were read on this motion to/for -------------- I No(s)._ _ _ _ __ Answering Affidavits - Exhibits ----------------- I No(s). - - - - - 1No(s). - - - - - Rep Iyin g A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - Upon the foregoing papers, it is ordered thatthis motion is ~ HI r1 t e d 1~ ct cc o rd a ri c e wt ./--l,, +~ ¬ Notice of Motion/Order to Show Cause - Affidavits - Exhibits ctY\p,e_J(ed dQ. ~ l ~ 1.0 V) , DECIDED IH ACCORDANCE WITH ACCOW.PANYlf~G DECIS!ON I ORDCR w u j:: I~ 0 I- C w 0::: 0::: w u.. w 0::: ¢ ¢ ...J ...J ::::J 0 u < >- ~ z I ~ w Cl) ~ I I! ~ (!) : 0::: 3: w I z ~ 0 I,~ ::1 < 0 u u.. i z ·10 I t== w ~ o::: 0 0 :E u.. Dated: 4 &:~ J2P)J If /_;.;: s~couRTJUSTICE 0 1. CHECK ONE: ..................................................................... b!<JASE DISPOSED IS~RANTED 0 CHECK IF APPROPRIATE: ................................................ 0 SETILE ORDER 2. CHECK AS APPROPRIATE: ........................... MOTION 3. ,J.S.C. 0 DO NOT POST DENIED 0 0 GRANTED IN PART 0 0 NON-FINAL DISPOSITION OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2]i. - .i' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61 -----------------------------------------------------------------)( AMERICAN TRANSIT INSURANCE COMPANY, DECISION AND ORDER Index No. 151205/2013 Plaintiff, -against- Mot. Seq. 001 GRISELIDA RODRIGUEZ, ADVANCED ORTHOPAEDICS, PLLC, ANESTHESIOLOGY ASSOCIATES OF MANHATTAN, PC, ARCE MEDICAL & DIAGNOSTIC SERVICES, PC, BACK TO LIFE CHIROPRACTIC SERVICES, CLINICAL LABORATORY MANAGEMENT, INC, COOL SYSTEMS, INC., LUIGIA C. ABRAMOVICI, MD, NCO FINANCIAL SYSTEMS INC., NYU HOSPITALS CENTER, HJD, PARK A VENUE ORTHOTICS, INC., STAND UP MRI OF QUEENS, PC, STEVEN STRUHL, MD, PLLC, Defendants. -----------------------------------------------------------------)( HON. ANIL C. SINGH, J.: Plaintiff seeks summary judgment, pursuant to CPLR § 32 l 2(b) against defendants GRISELIDA RODRIGUEZ, ARCE MEDICAL & DIAGNOSTIC SERVICES, P.C. and BACK TO LIFE CHIROPRACTIC SERVICES (collectively "Answering Defendants"). Plaintiff seeks a default judgment, pursuant to CPLR § 3215, against defendants ADV AN CED ORTHOPAEDICS, PLLC, CLINICAL LABORATORY MANAGEMENT, INC, COOL SYSTEMS, INC., LUIGIA C. ABRAMOVICI, MD, NCO FINANCIAL SYSTEMS INC., NYU HOSPITALS CENTER, HJD, PARK A VENUE ORTHOTICS, INC., and STEVEN STRUHL, MD, PLLC (collectively the "Defaulting Defendants"). Plaintiff discontinues the matter against Page 1 of 4 [* 3] ANESTHESIOLOGY AS SOCIA TES OF MANHA TT AN, PC, and ST AND UP MRI OF QUEENS, PC. The motion for summary judgment is opposed by the Answering Defendants. The motion for default judgment is unopposed. Plaintiff, AMERICAN TRANSIT INSURANCE COMPANY ("A TIC"), provided an insurance policy to Masada II Car & Limo Service under policy number CAP 604301. Defendant GRISELIDA RODRIGUEZ was allegedly injured in an auto accident involving a vehicle covered by this policy and made claims as a purported eligible injured person covered by the above referenced insurance policy under claim number 754473-04. The other defendants are medical providers which received assignments of rights from Mrs. Rodriguez. Summary judgment will be granted if it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [ 1986]). The burden is on the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [ 1980]; Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [ 1979]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d at 562). Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion (Zuckerman v City of New York, 49 NY2d at 562). Plaintiff alleges that it scheduled independent medical examinations ("IME'') of GRISELIDA RODRIGUEZ for 5/4/2009 and 5/18/2009 and that GRISELIDA RODRIGUEZ failed to attend either IME. Failure to appear for IMEs is a breach of a condition precedent to coverage under the no-fault policy. See Unitrin Advantage Ins. Co. v. Bayshore Physical Page 2 of 4 [* 4] Therapy, PLLC, 82 A.D.3d 559 (1st Dept. 2011). Based upon the failure to appear at the IMEs, Plaintiff denied all of Mrs. Rodriguez's no-fault claims and those of her assignees. Plaintiff offers the sworn affidavits of Sandra Joseph, Luis Campbell, and Denis Wolf as well as the affirmations of Dr. Robert Snitkoff and Dr. Eric Roth in support of its position. The Answering Defendants offer the sworn affidavit of GRIS ELIDA RODRIGUEZ in opposition to the motion for summary judgment. In her affidavit, Mrs. Rodriguez states that she never received the examination appointment letter regarding the 5/18/2009 examinations. No mention is made of the letter regarding the 5/4/2009 examination. However, the mailing of a letter creates a presumption that it was received and a simple denial is insufficient to rebut this presumption. See American Transit Ins. Co. v. Lucas, 111 A.D.3d 423, 2013 WL 5942371 (1 51 Dept. 2013). In the present case, the sworn affidavits of Sandra Joseph and Luis Campbell, together with copies of the IME scheduling letters establish that the letters were mailed to GRISELIDA RODRIGUEZ. The affidavit of GRISELIDA RODRIGUEZ is insufficient to rebut the presumption that she received the letters, especially in light of her presumed receipt of the letter notifying her of the 5/4/2009 IME. Accordingly, upon the affidavits of GRISELIDA RODRIGUEZ, Sandra Joseph, Luis Campbell, and Denis Wolf, the affirmations of Dr. Robert Snitkoff and Dr. Eric Roth and all other papers heretofore had herein, it is ORDERED that plaintiffs motion for summary judgment against GRISELIDA RODRIGUEZ, ARCE MEDICAL & DIAGNOSTIC SERVICES, P.C. and BACK TO LIFE CHIROPRACTIC SERVICES is granted, and it is further ORDERED that the plaintiffs motion for default judgment against ADVANCED Page 3 of 4 [* 5] .\ . ..,.=--- i ORTHOPAEDICS, PLLC, CLINICAL LABORATORY MANAGEMENT, INC, COOL SYSTEMS, INC., LUIGIA C. ABRAMOVICI, MD, NCO FINANCIAL SYSTEMS INC., NYU HOSPITALS CENTER, HJD, PARK A VENUE ORTHOTICS, INC., and STEVEN STRUHL, MD, PLLC is granted on default; and it is further ADJUDGED and DECLARED that the plaintiff has no obligation to provide no-fault benefits to the Defaulting Defendants under claim number 754473-04, insurance policy number CAP 604301. The foregoing constitutes the decision and order of the court. Date: IL-/J 3 }#)_? New /o;k, New York ~ 0-S. · Amlekingh HON. AN1L C. SINGH SUPREME COURT rusTICE Page 4 of 4 ------· ~--

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.