American Tr. Ins. Co. v Colon

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American Tr. Ins. Co. v Colon 2013 NY Slip Op 31283(U) June 12, 2013 Supreme Court, New York County Docket Number: 100879/12 Judge: Louis B. York 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. SCANNED ON 611912013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK -NEW YORK COUNTY Ron. LOUIS E. YORK PART 2 PRESENT: Justice X __"-_l__l_-_r____""_1-----1-----11--r----"----~--"-~--"-"--"------------------ AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff, -against- MANUEL COLON, ADVANCED PSYCHOLOGICAL CARE, P.C., AEE MEDICAL DIAGNOSTIC, P.C., DYNASTY MEDICAL CARE, P.C., IMS R., INC., MB PRECISION CHIROPRACTIC, P.C., NORTH COAST PHYSICAL THERAPY AND REHAB, P.C., NORWIND MEDICAL, P.C., PREFERRED MEDICAL NUCLEAR IMAGING, P.C., QUIKCARE MEDICAL, P.C., RIGHT STEP PHYSICAL THETIAPY, P.C., SAS MEDICAL, P.C., VITAL MERIDIAN ACUPUNCTURE, P.C., Defendants. ---_r----"--_---1-__1______l______r_____rl-----------------~--"--~----- The following papers, numbered 1 to Index No. 100879/12 Motion Date 03/20/13 Motion Seq. No. 001 Motion Cal. No. __ X were read on this motion for Default Jemt. I NUMBERED Notice of Motion/ Order to Show Cause -Affidavits -Exhibits PAPERS I Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: [ ] Yes [ 1 No Currently, plaintiff seeks default judgment. Based on the papers plaintiff has submitted in support of this motion, default judgment is not proper against Manuel Colon because there was no attempt to serve him during non-working hours. Under CPLR section 308, a movant can utilize "nail and mail" service only after attempting, with due diligence, to serve the defendant personally, Waterman v. Jones, 46 AD3d 63,65, 843 NYS2d 462, [* 2] American Transit v Colon -2- Index No. 100879/12 464 (Znd Dept. 2007), Courts have found that several attempts to serve an individual is insufficient. Instead, there must be an attempt to serve the defendant during non-working hours. Id, at 66,843 NYS2d at 464-65. Non-working hours do not end before 9:OO am and end at 5:OO pin, but instead take into account the time it takes an individual to commute to and froin his or her workplace. See, Serrano u Stwapoli, 9, 4 AD3d 1083, 1085, 943 NYS2d 201,203-04 (2nd Dept 2012). In this instance, plaintiff served the motion by mail on June 18, 20 12. Prior to that, plaintiff attempted personal service at the following dates and times: 1) Tuesday, May 29, 2012 at 5:46 p.m.; 2) Tuesday, June 12,2012 at 9:46 am.; andFriday, June 15,2012 at 11:57 a.m. There were no attempts to serve the individual during non-working hours, Therefore, plaintiff has not established due diligence. In addition, plaintiff states it served Colon on June 16. However, the Affidavit of Service does not state how the process server effectuated service - that is, the process server never states that he affixed the papers to the door.. However, the remaining defendants, Advanced Psychological Care, P.C., AEE Medical Diagnostic, P.C., Dynasty Medical Care, P.C., IMS R., Inc., MB Precision Chiropractic, P.C., North Coast Physical Therapy and Rehab, P.C., Nonvind Medical, P.C., Preferred Medical Nuclear Imaging, P.C., Quikcare Medical, P.C., Right Step Physical Therapy, P.C., Sas Medical, P.C., Vital Meridian Acupuncture, P.C., were served properly with the Complaint and with this motion. [* 3] American Transit v Colon -3- Index No. 100879/12 Moreover, they all have defaulted on both. Finally, plaintiff has made out a prima facie case against them. Therefore, a default judgment is appropriate against these defendants. Accordingly, it is ORDERED that the motion of plaintiff for summaryjudgment seeking a declaration that it is not obliged to provide a defense to, and provide coverage for defendants Advanced Psychological Care, P.C., AEE Medical Diagnostic, P.C., Dynasty Medical Care, P.C., IMS R., Inc., MB Precision Chiropractic, P.C., North Coast Physical Therapy and Rehab, P.C., Nonvind Medical, P.C., Preferred Medical Nuclear Imaging, P.C., Quikcare Medical, P.C., Right Step Physical Therapy, P.C., Sas Medical, P.C., Vital Meridian Acupuncture, P.C., in the action of American Transit Insurance Company vs. Manuel Colon, Et AI, Index No. 100879/12,New York County, is granted as to the second, fourth and fifth causks of action; and it is further ADJUDGED and DECLARED that plaintiff herein is not obliged to provide a defense to, and provide coverage for the above-named defendants for arbitration with respect to the August 11, 201 1 incident involving Manuel Colon and litigation arising under American Transit Insurance Company s insurance policy CAP 608833; and it is further ADJUDGED that plaintiff recovers froin these defendants costs and disbursements in the SUM of $ and it is further as taxed by the Clerk, and plaintiff have execution therefor; [* 4] American Transit v Colon Index No. 100879/12 -4- ORDERED and ADJUDGED that the action as against Mr. Colon is severed and dismissed, and the caption is amended to reflect the dismissal, and the new caption shall read as follows: Plaintiff, Index No. 606 170/96 - against ADVANCED PSYCHOLOGICAL CARE, P.C., AEE MEDICAL DIAGNOSTIC, P.C., DYNASTY MEDICAL CARE, P.C., IMS R., INC., MB PRECISION CHIROPRACTIC, P.C., NORTH COAST PHYSICAL THERAPY AND REHAB, P.C., NORWIND MEDICAL, P.C., PREFERRED MEDICAL NUCLEAR IMAGING, P.C., QUIKCARE MEDICAL, P.C., RIGHT STEP PHYSICAL THERAPY, P.C., SAS MEDICAL, P.C., VITAL MERIDIAN ACUPUNCTURE, P.C., Defendant. ________"____r-___-l________l___r______l-----------"-------"- X ; and it is further ORDERED that the movant shall file a copy of this Order and Judgment with the Clerk of Trial Support and the County Clerk, both of whoin are directed to mark their records accordingly. [* 5] American Transit v Colon Index No. 100879/12 -5- The Court notes that plaintiff sets forth no basis for attorney s fees, which it requests in the Complaint. Plaintiff does not appear to seek attorney s fees in this motion. Enter: UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice ofenby cannot be served based hereon, To owain m y counsel o authorized representative must b, r w i n person at the Judgment Clerk s Desk (Room l41B). Check one: @FINAL DISPOSITION Check if appropriate: NON-FINAL DISPOSITION DO NOT POST 0 REFERENCE

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