Hertz Vehs., LLC v Alluri

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Hertz Vehs., LLC v Alluri 2017 NY Slip Op 32404(U) November 13, 2017 Supreme Court, New York County Docket Number: 154077/2015 Judge: Kathryn E. Freed 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 11/21/2017 11:11 AM 1] NYSCEF DOC. NO. 107 INDEX NO. 154077/2015 RECEIVED NYSCEF: 11/21/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART __2 __ HON. KATHRYNE. FREED Justice --------------------------------------------------------------------------X INDEX NO. HERTZ VEHICLES, LLC, 154077/2015 Plaintiff, MOTION DATE -vJAGGA ALLURI, M.D .. ATLAS ORTHOSURGERY, P.C .. FRANKLIN HOSPITAL, INNOVTIVE MEDICAL, P.C .. VENKATESAN SIVARAMAN, ADVANCED ORTHOPEDICS, P C., PHILIP ABESSINIO, D.C., NORTHSHORE LIJ MEDICAL, p C., CAROLE LM SCHUSTER, PRECISION IMAGING OF NEW YORK, P.C., NORTH AMERICAN PARTNERS IN ANESTHESIA, LLP , NASIR ISMAIL, LAKEISHA HINTON, and KEYION CHEAIRS, MOTION SEQ. NO. 002 DECISION, ORDER AND JUDGMENT Defendants. -~------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 34, 35, 36, 37, 38, 39, 40, 41, 42,43,44,45,46,47,48,49, 50 were read on this motion to/for DEFAULT JUDGMENT Upon the foregoing documents, it is ordered that the motion is granted. In this declaratory judgment action, plaintiff Hertz Vehicles, LLC moves, pursuant to CPLR 3215 for a default judgment against defendants Jagga Alluri M.D., Atlas Orthosurgery, P.C., Franklin Hospital, Innovative Medical, P.C., Venkatesan Sivaraman, Philip Abessinio, D.C., North Shore LIJ Medical, P.C., Carole LM Schuster, Precision Imaging of New York, P.C., North American Partners in Anesthesia, L.L.P., Nasir Ismail, Lakeisha Hinton, and Keyion Cheairs. The motion is unopposed. After a review of plaintiffs motion, as well as the relevant statutes and case law, the motion is granted. 154077/2015 HERTZ VEHICLES, LLC vs. JAGGA ALLURI, M.O. Motion No. 002 1 of 6 Page 1of6 [*FILED: NEW YORK COUNTY CLERK 11/21/2017 11:11 AM 2] NYSCEF DOC. NO. 107 INDEX NO. 154077/2015 RECEIVED NYSCEF: 11/21/2017 FACTUALANDPROCEDURALBACKGROU~D: This action was commenced by plaintiff Hertz Vehicles, LLC against defendants Jagga Alluri, M.D. ("Alluri"), Atlas Orthosurgery, P.C.- ("Atlas"), Franklin Hospital ("Franklin"), Innovative Medical, P.C. ("Innovative"), Venkatesan . Sivaraman ("Sivaraman"), Advanced Orthopedics, P.C. ("Advanced"), Philip Abessinio, D.C. ("Abessinio''), North Shore LU Medical, P.C. ("North Shore"), Carole LM Sch~ster ("Schuster"), Precision,Imaging o.f New York, P.C. ("Precision"), North Ameri.can Partners in Anes.thesia, L.L.P. ("North American"), Nasir Ismail, Lakeisha Hinton, and Keyion Cheairs on or about Ap~il 22, 2015. In the complaint, plaintiff alleged, inter alia, that defendants Ismail, Hinton and Cheairs ("claimants") were involved in an automobile accident in Queens, New York on August 20, 2014 and, given that the police report indicated that the vehicles involved did not sustain visible damage and the cl~imants did not require medical attention at the scene, there was a "strong possibility" that the "loss was staged or intentionally caused and/or that the treatment [claimants underwent as a result of the incident] was not related to the collision." Complt. at pars. 16, 23. Plaintiff further alleged that, given the foregoing as well as the testimony by claimants Ismail and Hinton at their examinations under oath ("EUOs"), it had a "founded belief'' that claimants' injuries and the treatment they allegedly received were,notcausally related to the ~ccident allegedly covered by an insurance policy it issued. Complaint at ·par. 33. The remaining defendants named were medical providers which treated claimants following the alleged incident. Of those medical providers, only Alluri, Innovative, Sivaraman, Abessinio, Schuster, and Advanced have answered. 1 Atlas has settled with plaintiff. 1 Plaintiff previously moved for a default against the same defendants (motion sequence 00 I). By order dated May 16, 2016, this Court denied that motion on the ground that plaintiff failed to set forth facts constituting the claim. 154077/2015 HERTZ VEHICLES, LLC vs. JAGGA ALLURI, M.D. Motion No. 002 2 of 6 Page 2 of 6 [*FILED: NEW YORK COUNTY CLERK 11/21/2017 11:11 AM 3] NYSCEF DOC. NO. 107 INDEX NO. 154077/2015 RECEIVED NYSCEF: 11/21/2017 Plaintiff now renews its motion, pursuant to CPLR 3215, for a default judgment against defendants Franklin. Advanced, North Shore, Precision, North American, and claimants due to their failure to answer or otherwise appear in this matter. 2 In support of the motion, plaintiff submits, as it did on its initial motion, an attorney affirmation and the affidavit of plaintiffs claims representative, Jeremy Rothenberg, who avers, inter alia, that, based on the circumstances surrounding the incident, and claimants' treatment, plaintiff has a "founded belief' that the treatment was not causally related to the alleged accident. However, in an attempt to establish facts constituting the claim, it now also submits, inter alia, transcripts of the EU Os of claimants Ismail and Hinton setting forth their versions of the alleged occurrence. CONCLUSIONS OF LAW: CPLR 3215 (a) provides, in pertinent part, that "[w]hen a defendant has failed to appear, plead or proceed to trial. .. , the plaintiff may seek a default judgment against him." . It is well settled that"[ o ]n a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing." See Atlantic Cas. Ins. Co. v RJN.J Servs. Inc., 89 AD3d 649, 651 (2d Dept 2011 ). "New York courts "rarely, if ever" grant declaratory judgments on default "with no inquiry by the court as to the merits." Tanenbaum vA!lstate Ins. Co., 66 AD2d 683, 684 (1st Dept 1978). Default declaratory judgment actions '"will not be granted on the default and pleadings alone"' but require that the '"plaintiff <!!Stablish a right to a declaration against ... a defendant."' Levy v Blue Cross & Blue Shield of Greater N. Y, 124 AD2d 900, 902 (3d Dept 1986), quoting National ~Although Advanced cross-moved to dismiss the -complaint, it stipulated on October 6, 2016 to withdraw its motion m exchange for permission to file its answer and the withdrawal of plaintiffs motion for default. 154077/2015 HERTZ VEHICLES, LLC vs. JAGGA ALLURI, M.D. Motion No. 002 3 of 6 Page 3 of 6 [*FILED: NEW YORK COUNTY CLERK 11/21/2017 11:11 AM 4] NYSCEF DOC. NO. 107 INDEX NO. 154077/2015 RECEIVED NYSCEF: 11/21/2017 Sur. Corp. v Peccichio, 48 Misc2d 77, 78 (Sup Ct Albany County 1965)." de Beeck v Costa, 39 Misc3d 347 (Sup Ct New York County 2013). The initial motion for default was denied, inter alia, because Rothenberg's affidavit was conclusory and unsupported by any. evidence, other than the police report, which would provide plaintiff with the basis for its "founded belief' that claimants' injuries were not causally related to the alleged accident. On this motion, however, plaintiff also submits copies of the EUOs of claimants Ismail and Hinton, which were a part of plaintiff's claims investigation. 3 Plaintiff argues that, based on the testimony at the EU Os, Ismail and Hinton did not miss any work as a result of the collision; plaintiffs vehicle was operable after the collision; claimants went to dinner after the collision rather than seek medical treatment; Ismail and Hinton described the impact on the vehicle as hard, yet admitted that there was little damage to both vehicles involved in the collision; Ismail could not remember the cost of the rental car; Ismail and Hinton received X-Rays, nerve testing and MRis but could not recall the results of the tests; Ismail received a shoulder stretching machine, but was unable to use it in his apartment; and the attorney representing Ismail and Hinton was uncooperative during their EU Os, continuously going off the record in order to coach them. In light of the foregoing, this Court determines that plaintiff has cured the deficiencies in its initial motion for default and has set forth facts giving rise to the claim. Therefore, in accordance with the foregoing, it is hereby: 3 Claimant Cheairs did not undergo an EUO. 154077/2015 HERTZ VEHICLES, LLC vs. JAGGA ALLURI, M.D. Motion No. 002 4 of 6 Page 4 of 6 [*FILED: NEW YORK COUNTY CLERK 11/21/2017 11:11 AM 5] NYSCEF DOC. NO. 107 INDEX NO. 154077/2015 RECEIVED NYSCEF: 11/21/2017 ORDERED that the motion by plaintiff Hertz Vehicles, LLC is granted; and it is further ORDERED that plaintiffs motion for leave to enter a default judgment against defaulting defendants Franklin Hospital, North Shore LIJ Medical, P.C., Precision Imaging of New York, P.C., North American Partners in Anesthesia, L.L.P., Nasir Ismail, Lakeisha Hinton, and Keyion Cheairs is granted without opposition to the following extent: and it is further ORDERED and ADJUDGED that plaintiff has no contractual duty to defaulting defendants Franklin Hospital, North Shore LIJ Medical, P.C., Precision Imaging of New York, P.C., North American Partners in Anesthesia, L.L.P., Nasir Ismail, Lakeisha Hinton, and Keyion Cheairs to defend or indemnify said defaulting defendants under the policy issued by plaintiff in any action or proceeding brought for damages arising out of personal injury or property damage as a result of the alleged accident of August 20, 2014; and it is further ORDERED and ADJUDGED that plaintiff is not obligated lo provide coverage for any claim or honor or pay claims for reimbursement submitted by defaulting defendants Franklin Hospital, North Shore LIJ Medical, P.C., Precision Imaging of New York, P.C., North American Partners in Anesthesia, L.L.P., Nasir Ismail, Lakeisha Hinton, and Keyion Cheairs arising from the alleged accident of August 20, 2014 under New York Insurance Regulation 68; and it is further 154077/2015 HERTZ VEHICLES, LLC vs. JAGGA ALLURI, M.D. Motion No. 002 5 of 6 Page 5 of 6 [*FILED: NEW YORK COUNTY CLERK 11/21/2017 11:11 AM 6] NYSCEF DOC. NO. 107 INDEX NO. 154077/2015 RECEIVED NYSCEF: 11/21/2017 ORDERED that the matter is severed and shall proceed against the remaining defendants "' Jagga Alluri, M.D., Innovative Medical, P.C., Venkatesan Sivaraman, Philip Abessinio, D.C., Carole LM Schuster, and Advanced Orthopedics, P.C.; and it is further ORDERED that this constitutes the decision and order of the Court. 11/13/2017 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 154077/2015 HERTZ VEHICLES, LLC vs. JAGGA ALLURI, M.D. • Motion No. 002 6 of 6 D OTHER D REFERENCE Page 6 of 6

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