Unitrin Auto & Home Ins. Co. v Advances Med. Diagnostics, P.C.

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Unitrin Auto & Home Ins. Co. v Advances Med. Diagnostics, P.C. 2014 NY Slip Op 31912(U) July 11, 2014 Supreme Court, New York County Docket Number: 106156/11 Judge: Joan A. Madden 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ~JOAN A. MADDEN J.S.C. 1 _ PART_1 _/_ Justice - : Index Number : 106156/2011 UNITRlN AUTO & HOME INS. CO. i vs. INDEX NO. _ _ _ __ 1 MOTION DATE _ _ __ ADVANCED MEDICAL DIAGNOSTICS, I SEQUENCE NUMBER : 003 _.,_s_UMMARY JUDGMENT f _ The f~llowing MOTION SEQ. NO. - - - papers, numbered 1 to _ _ , were·read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ _ __ I No(s). I No(s). - - - - - Notic~ of Motion/Order to Show Cause - Affidavits - Exhibits Ans~ring Affidavits- Exhibits . . . . Rep~ing Affidavits 1 Upo the foregoing papers, tt Is ordered that this motion is ? . ¢ ·itn:flc ~1U.;"--12?{ .~, 1 ju_ ~ed ~~. ~µJr1· w .. ) ~ (/) ::;::, .., ~ Q w a::: a::: w th er: >;.::. ....I !!!. ..J z ::;::, 0 u. UJ ~ ~. a. er: UNFll.&0 JUDGMENT wz This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain ~~ counsel or authorized representative must appear ii ..,._. at Judgment Clerk' ¢ D8&k (Room (I) C) cr:. 3E !!? 0 UJ en ....I _, <( 0 (.) u.. - :c z w 0 1j:: i er: ft 141-.. u. ~1.' ~-,. ,. . ~· --........n-~------_,,J.S.C. () 1. 2. 3. 0 NON-FINAL DISPOSITION 01\!E:··.....................................................................~ DISPOSED CASE. !, GRANTED IN PART OTHER CHECK A5rAPPROPRIATE: ...........................MOTION IS· RANTED 0 DENIED 0 SUBMIT ORDER CHECK IF ~PPROPRIATE: .................................~.............. 0 SETILE ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE CHECK [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 1 I UNITRIN AUTO & IIO?vIE Il\SURA.NCE COMPANY, INDEX NO. 1061 l1 Plaintiff ADVANCED MEDICAL DIAGNOSTICS, P.C, ADVANCED ORTBOPAEDICS, PLLC, ALFA MEDICAL SUPPLIES, INC., ALL COUNTY LLC, JU~CTIOJ\ EXPRESS RADIOLOGY, P.C., BLR CHIROPR/'~CTIC, P.C., DIAGNOSTIC PLUS MEDICAL, P.C, FOREST HILLS MEDICAL, P.C., GRO\V UP PT, P.C., JLS CHIROPR/\CTJC, P.C., MIKHAIL I. KANTIUS, M.D., SEBASTIAN LATTllGA, M.D., DIWAN LAXLVIIDHAR, :M.D., LEX PSYCHOLOGICAL SERVICES, P METROPOLITAN POST-TR./\UMATIC MEDICAL CARE, P.C., NATIONAL R.X CORP., OPTIMAL WELL BEING CHJROPiv:\CTIC, P.C., PAIN MANAGEMENT CENTER OF NEW JERSEY, PRO HEALTH ACUPUNCTURE, P.C., Pl!GSLEY CHIROPRACTIC, PLLC, QUALITY SERVICE SUPPLIES, INC., QUEENS MEDICAL & DIAGNOSTIC, P.C., QUEENS SURGI-CENTER, P.C., SURENDRANATH K. REDDY, M.D., P.C., SANS PAREIL SURGICAL PLLC, SAS MEDICAL, P.C., SUCCESS REHAB PT, P.C., SUPERIOR MEDICAL REHAB, P.C., GRBAN \VELL ACUPUNCTURE, P.C., V & T MEDICAL, P.C., VILLAGE MEDICAL SUPPLY, INC., VISTA DIAGNOSTIC IlVIAGmG, P.C., WARREN MEDICAL, P XERON CLINICAL LABOR/\ TORIES, INC., ANDREA CASTILLO, ~~ARIA: CASTI~LO, ~ERES~ UNF\LEO JUDGMENT CASTRO, BRIGIDA Gt)ZMAN, ISABEL GUZMAN, ~ t been entered by the county Clerk and ROSEMARY GlJZJVlAN, This jud~me~t h~~ "~nnot be served based hereon. To Defendants. and ~ottce o en nsel or authorized representative must o:.Jtain entry, cou Cle k' Desk (Room appear in person at the Judgment r s ------------------------·-----·-----------------------------------1-4t6):-----X JOAN MADDEN. J.: In this action for declaratory relief as to no-fault insurance plaintiff moves for an order pursuant to CPLR 3212 granting summary judgment against defendants Alfa Medical Supplies, Inc. ("Alfa'} Village Medical Supply, Inc. ("Village"), \Varren 1'vfedica1, P. [* 3] ("Warren''), and Success Rehab PT, P. C. ("Success") (collectively the "answering defendants'} 1 The ansvvering defendants oppose the motion. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by submitting evidentiary proof in admissible form sufficient to establish the absence of any material issues of fact. See CPLR 3212 [b]; Winerrrad v. Ne\V York Universitv Medical Center, 64 NY2d 851, 853 (1985); Zuckerman v. Citv of New York, 49 NY2d 557, 562 (1980); )\1eridian Manae,ement Corp v. Cristi Cleaning Service Corp, 70 AD3d 508, 510 (1st Dept 2010). Once such showing is made, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212 (b ); see Zuckerman v. City of Ne\v York, supra at 562. 1 By order dated May 12, 2012, this court granted plaintiffs motion (motion seq. no. 001) for a default judgment against defendants ADVANCED MEDICAL DIAG>JOSTICS, P.C, ALL COUNTY LLC, BLR CHIROPRACTIC, P.C., DIAGNOSTIC PLUS MEDICAL, P.C, FOREST HILLS MEDICAL, P.C., GROW UP PT, P.C., JLS CHIROPRACTIC, P.C., MIKHAIL I. KANTIUS, M.D., DIWAN LAXIMIDHAR, M.D., LEX PSYCHOLOGICAL SERVICES. P.C., METROPOLITAN POST-TRAUMATIC MEDICAL CARE, P.C., OPTIMAL WELL BEING CHIROPRACTIC, P.C., PRO HEALTH ACUPUNCTURE, P.C., PUGSLEY CHIROPRACTIC, PLLC, QUALITY SERVICE SUPPLIES, INC., QUEENS SURGI-CENTER, P.C., SURENDRANATH K. REDDY, M.D., P.C., URBAN WELL ACUPUNCTURE, P.C., V & T MEDICAL, P.C., VISTA DIAGNOSTIC \IMAGING, P.C., XERON CLINICAL LABORATORIES, lNC., ANDREA CASTILLO, MARIA CASTILLO, TERESA CASTRO, BRIGIDA GUZMAN, ISABEL GUZMAN, and ROSEMARY GUZMAN. By order dated May 8, 2013, this court granted plaintiffs motion (motion seq. no. 002) to strike the answer of defendants Advanced Orthopaedics, PLLC and Sebastian Lattuga, M.D., and granted a default judgment against said defendants. As previously noted, the action settled with defendants JUNCTION EXPRESS RADIOLOGY, P.C., QUEENS MEDICAL & DIAGNOSTIC, P.C., SANS PAREIL SURGICAL PLLC, SAS MEDICAL, P.C., SUPERIOR MEDICAL REHAB, P.C. and NATIONAL RX CORP. By order dated December 16, 2013, this court granted plaintiff's motion (motion seq. no. 004) for an additional 120 days to serve defendant Pain Management Center of New Jersey. ------------ 2 [* 4] Plaintiff has established prima facie entitled to judgment as a matter oflmv against defendants Alfa, Village, \Varren and Success. ln support of the motion, plaintiff submits aCfinrn1tions of attorneys Jason Eson and Harlan Schreiber; an aiTidaYi 1 of Denise \Vimmt plaintiffs claims representative; the pleadings; the police accident report: applications for nofault benefits submitted by defendants Maria Castillo, Isabel Guzman. Andrea Castillo, Rosemary Guzman and Brigida Guzman (collectively "claimants" or tbe "claimant defendants .. ; letters from the law firm of Rubin, Fiorella & Friedman, LLP addressed to the claimants scheduling examinations under oath ("EU Os"), and certificates of mailing as to those letters; the transcripts of the EU Os oflsabel Guzman, Maria Castillo, Andrea Castillo, Brigida Guzman and Teresa Castro; Verification of Treatment Forms completed by defendant Warren; letters from the law firm of Rubin, Fiorella & Friedman, LLP addressed to defendants Alfa, Warrren, Village and Success, scheduling EUOs, and certificates of mailing as to those letters; plaintiff's Denial of Claim Forms denying Village's claims, as assignees of Maria Castillo, based on several grounds including Village's failure to appear for EU Os scheduled for September 13 and October 8, 2010; plaintiffs Denial of Claim Forms denying Success's claims, as assignee of Maria Castillo, based on several grounds including Success's failure to appear for EUOs on September 13 and October 10, 2010; plaintiffs Denial of Claim Forms denying Alfa's claims, as assignees ofIV1aria Castillo, based on several grounds including Alfa's failure to appear for EUOs on September 7 and October 6, 2010; Maria Castillo's Assignment of Benefits Forms assigning her no-fault benefits to Alfa: plaintiff's Denial of Claim Forms denying Warren's claims, as assignee of Maria Castillo, on several grounds including Warren's failure to appear to EUOs on September l 3 and October 8, 20 l O; plaintiff's Denial of Claim Forms denying Village's claims, as assignee ,.., _) [* 5] of Andrea Castillo, on several grounds including Village's failure to appear for EUOs on September 13 and October 8, 201 O; plaintiff's Denial of Claim From denying Success's claims, as assignee of Andn:::a Castillo, on several grounds including Success's failure to appear for EUOs on September 13 and October 8, 2010; plaintiff's Denial of Claim Forms denying Alfa's claims, as assignee of Andrea Castillo, on several grounds including Alfa's failure lo appear for EUOs on September 7 a:1d October 6, 2010; Andrea Castillo's Assignment of Benefits Forms assigning her no-fault benefits to Alfa; and plaintiffs Denial of Claim Forms denying Warren's claims, as assignee of Andrea Castillo, on several grounds including \V arren' s failure to appear for EU Os on September 13 and October 8, 20 l 0. The foregoing affidavits and documents are sufficient to establish that the EUO notices were mailed to Alfa, Village, \Varren and Success, scheduling EUOs on two different dates, and that none of them appeared either scheduled date. The failure to appear for an EU 0 is a breach of a condition precedent to coverage under a no-fault policy, and a denial of coverage premised on such breach voids the policy ab initio. See Insurance Department Regulation 11 NYCRR §65-1.1; IDS ProRerty Casualty Insurance Co v. Stracar Medical Services, PC, 116 AD3d l 005 (2 11 d Dept 2014): Interboro Insurance Co v. Clennon, 113 AD3d 596 (2nd Dept 2014); Unitrin AdvantaQe Insurance Co v. Bayshore Physical Therapv, PLLC, 82 AD3d 559 (1st Dept), lv app den 17 NY3d 705 (2011 ); Olmeur Medical. P.C. v. Nationwide General Insurance Co, 41 Misc3d 143(A) (App Term 2nd Dept 2013); Arco Medical New York, PC v. Lancer Insurance Co, 3 7 11 Misc3d 90 (App Term 2 c1 Dept 2012). Since it is undisputed that Alfa, Village, Warren and Success did not appear for the scheduled EUOs, plaintiff has a right to deny their claims, based on breach of a condition precedent to coverage. See IDS Property Casualtv Insurance Co v. 4 [* 6] ----...-------------------~d d (11 Si""C'". ~A·~·-11'c~1 S·"···1·,,.,,, DI'. a . ._ L--1 \ \,...\...,.._)~ J \.._,~ J\'iLl.l S'"l'"''' ~' lr,1;t1·1''1Ad,,a11t'·'"C -'1 1 l V j-\._\.. ~ Ll-~' '['"''11CC 1-U 1" 0 lll~L c~o ~ \' ¢ Ba\'Sl101·e Ph\·s1'cal 1- ..li .._ Therapv. PLLC, supra. Plaintiil~ therefore, has met its burden on the motion and the burden shifts to the answering defendants Alfa, Village, \Varren and Success to raise a triable issue of material fact. In opposing the motion, the ansvvering defendants do not dispute that they failed to appear for the EU Os on the t\vo scheduled dates, and that they never objected to the EUO requests. Rather, defendants argue that: 1) plaintiff has not established that the EUO letters were mailed or timely mailed. or that defendants failed to appear for the EUOs, as attorney Schreiber's affirmation is conclusory and not based on personal knowledge; 2) the statements in Denise Wimmt's affidavit as to the reasons for scheduling the EUOs are not credible; 3) the police report is inadmissible; 3) the EUO letters are improper requests for ''pre-litigation discovery"; 4) and plaintiff has failed to prove that defendants' non-appearance at the EUOs was willful. Contrary to the defendants' assertion, the affirmation of attorney Schreiber detailing the procedures for preparing and mailing the EUO letters, as well as the certificates of mailing, are sufficient to show thal the EUO letters \Vere mailed to the answering defendants. Moreover, Schreiber specifically states he personally waited for each of the answering defendants to appear at his office on the dates scheduled for the EU Os, and that none of them appeared. While the answering defendants object that plaintiff has not established that it tirnely denied the claims, a timely denial is not reqllired. See id. Moreover, plaintiff is not required to make a showing of willful non-compliance with its requests for EUOs. See id; Arco Medical Nev/ York, PC v. Lancer Insurance Co, supra. Defendants' objections as to the content of the EUO letters are without merit Nota.Jly, defendants neither deny receipt of the EUO letters, nor assert that the 5 [* 7] letters were incorrec1 ly addressed. Moreover. since the ansv,ering defendants submit no evidentimy proof tlrnt they responded in any way to the EUO notices when they received them in 2010, they will not now be heard to object that no reasonable basis existed for the EUO requests. See Flatlands MedicaL PC v. State Farm Mutual Automobile Insurauce Co, 38 Misc 135 (A) (App Term 2013); Vivia:.1e Etienne Medical Care. PC v. State Farm Mutual Automobile [nsurance Co, 35 Misc3d 127(A) (App Term 2011). The court has considered the balance of the answering defendants' arguments, and finds they are likewise without merit. Thus, in the absence of an issue of material fact, plaintiff is entitled to summary judgment against defendants Alfa Medical Supplies, Inc., Village Medical Supply, Inc., Warren Medical, P .C., and Success Rehab PT, P.C. Accordingly, it is ORDERED that plaintiff's motion is granted; and it is further ORDERED, ADJUDGED AND DECLARED that plaintiff Unitrin Auto & Home Insurance Company, owes no duty to defendants Alfa Medical Supplies, Inc., Village Medical Supply, Inc., Warren Medical, P.C., and Success Rehab PT, P.C., to pay No-Fault claims brought seeking to recover No-Fault benefits, relating to the vehicular collision that allegedly occurred on January 16, 2010; and it is further ORDERED, ADJUDGED AND DECLARED that the defendants Alfa Medical Supplies, Inc., Village I\1edical Supply, Inc., Warren Medical, P.C., and Success Rehab PT, P.C. have no rights to recover No-Fault claims with respect to the January 16, 2010 alleged collision~ and it is further 6 [* 8] ORDERED, ADJUDGED AND DECLARED that defendants Alfa Medical Supplies, fnc., Village Medical Supply, Inc., Warren Medical, P.C., and Success Rehab PT, P.C.. have no standing to recover No-Fault claims \Vith respect to the Jamiary 16, 2010 alleged collision; and it is further ORDERED AND ADJUDGED that all arbitrations or court actions involving defendants Alfa Medical Supplies, Inc., Village Medical Supply, lnc., Warren Medical, P.C.. and Success Rehab PT, P .C., and relating to the January 16, 20 l 0 al1eged collision are permanently stayed; and it is further ORDERED that since the court's computer records do not indicate that plaintiff has filed an afiidavit of service as to the only remaining defendant, Pain Management Center of New Jersey, the action is dismissed \Vithout prejudice as against such defendant. DATED: July I/ , ENTER: 2014 (} UNf\LEO JUQ§~ county Cieri< - . men~,tere~ ~ased hereon. To : : lU'!fue C'I. entry cannot be s~rv d representative must ...w:.::1.rno entry, counse\ or autdho.~~~t Clerk's oesK (Room uw- - ~at the Ju 9 ~Hlyv·--- 1418). 7 .~~~~~v_·_ ·-·~~~ ?( . · J.S.C

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