Nationwide Affinity Ins. Co. of Am. v Thomas

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Nationwide Affinity Ins. Co. of Am. v Thomas 2018 NY Slip Op 30559(U) March 28, 2018 Supreme Court, New York County Docket Number: 157816/2016 Judge: Gerald Lebovits Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157816/2016 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 10:46 AM 1] NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 04/02/2018 NEW YORK STATE SUPREME COURT NEW YORK COUNTY: PART 7 NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Plaintiff, -against- Index No: 157816/2016 DECISION/ORDER Motion sequence 003 INDIVIDUAL DEFENDANTS JAMES THOMAS, JERMAINE VICTORIAN, RASHIDA BELL, VLADMIR TAYLOR HEAL TH CARE PROVIDER DEFENDANTS ACH CHIROPRACTIC, P.C., CHARLES DENG ACUPUNCTURE, P.C., ELIEZER OFFENBACHER, M.D., PLLC, ISLAND LIFE CHIROPRACTIC PAIN CARE, PLLC, JULES FRANCOIS PARISIEN, M.D., NEW YORK MEDICAL & DIAGNOSTIC CARE, P.C., QUALITY HEAL TH SUPPLY CORP., QUALITY CUSTOM MEDICAL SUPPLY, INC., RA MEDICAL SERVICES, P.C., HANK ROSS MEDICAL, P.C., Defendants. Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing plaintiffs CPLR 3212 motion for summary judgment. Papers NYSCEF Documents Numbered Plaintiffs Notice of Motion ................................................................................................... 89-127 Defendant Quality Custom Medical Supply, Inc's Affirmation in Opposition ................... 129-130 RyBek Defendants' Affirmation in Opposition ........................................................................... 136 Plaintiffs Affirmation in Reply ................................................................................... 131-133, 13_7 Bruno Gerbino & Soriano. LLP, New York (Vincent F. Gerbino of counsel), for plaintiff. The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for defendants Jermaine Victorian, Rashida Bell, Vladimir Taylor, ACH Chiropractic, P.C., Charles Deng Acupuncture, P.C., Island Life Chiropractic Pain Care, PLLC, Jules Francois, M.D., Quality Health Supply Corp., and RA Medical Services (Rybak Defendants). 2 of 5 INDEX NO. 157816/2016 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 10:46 AM 2] NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 04/02/2018 Gary Tsirelman P. C., Brooklyn (Douglas Mace of counsel), for defendant Quality Custom Medical Supply, Inc. Law Offices of.Jillary Blumenthal, P. C.., New York, for defendant Eliezer Offenbacher, M.D. Gerald Lebovits, J. In this declaratory-judgment action, plaintiff moves for summary judgment under CPLR 3212 on the supposed ground that defendants James Thomas, Jermaine Victorian, Rashida Bell, and Vladmir Taylor 1 (the individual defendants) breached a material condition precedent to coverage under James Thomas's policy of insurance and the No-Fault Regulations by failing to appear for duly scheduled examinations under oath (EUO). Plaintiff moves for summary judgment against the following defendants: 2 Jermaine Victorian, Rashida Bell, Vladimir Taylor. ACH Chiropractic, P.C., Charles Deng Acupuncture, P.C., Eliezer Offenbacher, M.D., PLLC. Island Life Chiropractic Pain Care, PLLC, Jules Francois Parisien, M.D., Quality Health Supply Corp., Quality Custom Medical Supply, Inc., and RA Medical Services, P.C. 3 Plaintiff argues that it is under no obligation to pay the individual defendants and the healthcare providers for the claims submitted to plaintiff. In the alternative, plaintiff moves for partial summary judgment as to plaintiffs prima facie case. Preliminarily, defendant Eliezer Offenbacher, M.D. does not oppose plaintiffs motion. That aspect of plaintiffs motion against defendant Offenbacher is granted without opposition. Summary Judgment Plaintiff establishes its prima facie entitlement to summary judgment. A party's failure to appear for two scheduled EUOs constitutes a material breach of the insurance policy; therefore, the insurer may deny coverage. (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [!st Dept 2011] ["A denial premised on breach ofa condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage."], Iv denied 17 NY3d 705 [2011 ]; accord Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [I st Dept 2016] [ "The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach ofa condition precedent vitiating coverage."]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2d Dept 2006] [holding that an insurer may retroactively deny claims on the basis of assignor's failure to appear for additional verification requested by insurer].) On a summary-judgment motion, the moving party must establish that it timely and 1 The parties sometimes refer defendant Taylor as "Vladimir" Taylor and sometimes refer to him as ··vladmir." The complaint refers to defendant Taylor as "Vladmir." 2 Plaintiff does not move for summary judgment against defendant James Thomas. 3 Plaintiff moved under CPLR 3215 for a default judgment against defendant New York Medical & Diagnostic Care, P.C. and Hank Ross Medical, P.C. The motion was granted without opposition on May 10, 2017. (NYSCEF document number 82.) 2 3 of 5 INDEX NO. 157816/2016 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 10:46 AM 3] NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 04/02/2018 properly mailed the notices for EUOs to defendants and that the defendants failed to appear. (Bath Ortho Supply. Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271[U],*1 [App Term I st Dept 2002], citing Unitrin, 82 AD3d at 560; Fogel, 35 AD3d at 721; see Repwest Ins Co. v Advantage Radiology, P.C., 42 Misc 3d 1210 [A], **2-4, 2014 NY Slip Op 50016 [U], **2-4, 2014 WL 127915, at **2-4 [Sup Ct NY County 2014] ["In support of its motion, plaintiff ... proffers ... the [EU OJ letters .... the affidavits of service for all such letters, and an affidavit from Joseph R. Federici, Esq. stating that on each scheduled EUO date, he waited for the Defendants ... [who] failed to attend the scheduled EUOs."].) Plaintiff proved that it timely and properly sent the EUO letters to defendants Thomas, Victorian, Bell, and Taylor. Allan Hollander, Esq. sufficiently explains how plaintiff generates and mails the EUO letters. (Exhibit KK.) Plaintiff provides as exhibits to its summary-judgment motion the EUOs letters. (Exhibits N, P, T, V, Z, BB, FF, and HH.) Plaintiff sent these letters by certified mail return receipt requested and by first-class mail. Plaintiff also proved that the following defendants failed to appear for two EU Os: (I) defendant Taylor failed to appear for EUOs on June 22 and July 29, 2016 (Exhibits 0, Q); (2) defendant Victorian failed to appear on June 24 and July 25, 2016 (Exhibits U, W); (3) defendant Bell failed to appear on June 24 and July 25, 2016 (Exhibit AA, CC); and (4) defendant Taylor failed to appear on June 24 and July 29, 2016 (Exhibit GG, II). Plaintiff provides affirmations from the attorneys who would have conducted the EU Os and who waited for these defendants to appear on the above-mentioned dates. (Id.) Plaintiff also provides the transcripts in which the attorneys made statements on the record about the non-appearance of these defendants to appear for EU Os on each respective date. (Id.) Also, plaintiff proved that it properly denied defendants' claims. (Exhibits R, X, DD, JJ Exhibit 1 to its Reply.) Plaintiff proved that it generated and mailed the denials, NF-lOs, to defendants. (Exhibits L, K.) Each of the denials provides that the various defendants were carbon copied on these denials. (Exhibits R, X, DD, JJ, Exhibit 1 to its Reply.) Plaintiff also explained the reasons for requesting the EU Os. (Exhibit K.) Thus, plaintiffs summary-judgment motion is granted. Plaintiff has no duty to pay nofault claims with respect to the April 9, 2016, incident for defendants Jermaine Victorian, Rashida Bell, Vladimir Taylor, ACH Chiropractic, P.C., Charles Deng Acupuncture, P.C .. Eliezer Offenbacher, M.D., PLLC, Island Life Chiropractic Pain Care, PLLC, Jules Francois Parisien, M.D., Quality Health Supply Corp., Quality Custom Medical Supply, Inc., and RA Medical Services, P.C. Defendants Thomas, Victorian, Bell, and Taylor failure to appear for two duly scheduled EU Os constitutes a breach of a condition precedent to coverage. Opposition Defendants' counsels' affirmations, coming from individuals without personal knowledge, have no probative value. In any event, counsels' affirmations create no material issue of fact for trial. (See GTF Marketing Inc. v Colonial Aluminum Sales. Inc., 66 NY2d 965, 968 [ 1985] ("As we have previously noted, an affidavit or affirmation of an attorney without personal 3 4 of 5 INDEX NO. 157816/2016 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 10:46 AM 4] NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 04/02/2018 knowledge of the facts cannot 'supply the evidentiary showing necessary to successfully resist the motion."'] [citations omitted]; Zuckerman v City ofNew York, 49 NY2d 557, 563 [1980] ["(A] bare affirmation of ... [an] attorney who demonstrated no personal knowledge ... is without evidentiary value and thus unavailing."]; Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 [!st Dept 1981] ["The affirmation of counsel without requisite knowledge of the facts is without probative value. Moreover, the attorney's affirmation sets forth conclusory allegations rather than evidentiary facts and, even if it could be considered, is insufficient."] [citations omitted], affd 54 NY2d 715 [1981].) Defendants' counsels' affirmations contain legal arguments. The legal arguments that counsels assert contradict the evidence that plaintiff submits in support of its summary-judgment motion and in reply. Plaintiff's summary-judgment motion is not premature; no additional disclosure is needed. Defendants' remaining arguments are irrelevant, unpersuasive, or both. In any event, the affirmations do not create material issues of fact for trial. Accordingly, it is hereby ORDERED that plaintiff's summary-judgment motion is granted and a declaratory judgment is granted and plaintiff shall settle order; that aspect of plaintiffs motion against defendant Eliezer Offenbacher, M.D. is granted without opposition; and it is further ORDERED that plaintiff's counsel must serve a copy ofthis decision and order on defendants. Dated: March 28, 2018 J.S.C. _HON. GERALD l.EBOVITS J.S.C. 4 5 of 5

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