American Tr. Ins. Co. v Disla

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American Tr. Ins. Co. v Disla 2018 NY Slip Op 32941(U) November 14, 2018 Supreme Court, New York County Docket Number: 160607/2017 Judge: Joel M. Cohen 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. [*FILED: 1] NEW YORK COUNTY CLERK 11/26/2018 09:19 AM NYSCEF DOC. NO. 22 INDEX NO. 160607/2017 RECEIVED NYSCEF: 11/26/2018 SUPREME COURT OF THE STATE OF NEW YORK . NEW YORK COUNTY PRESENT: PART HON. JOEL M. COHEN IAS MOTION 45 Justice ------------------------------------------------------------------·---X AMERICAN TRANSIT INSURANCE COMPANY, INDEX NO. MOTION·DATE 160607/2017 10/12/2018 Plaintiff, MOTION SEQ. NO. 001 -vCHRISTOPHER DISLA, ACUPUNCTURE NOW P.C.,BRONX MEDICAL DIAGNOSTIC P.C.,HAAR ORTHOPAEDICS & SPORTS MEDICINE, P.C.,HEALTHWAY MEDICAL CARE P.C.,JULES PARISIEN, LONGEVITY MEDICAL SUPPLY, INC, OPTIMUS PRODUCTS OF USA, CORP., SB CHIROPRACTIC, P.C. DECISION AND ORDER Defendant. --------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for JUDGMENT-DECLARATORY Upon the foregoing documents: Plaintiff American Transit Insurance Company seeks a default judgment and a declaratory judgment against Defendant Christopher Disla, Defendants Bronx Medical Diagnostic P.C., Haar Orthopaedics & Sports Medicine, P.C., Optimus Products of USA Corp., ("Additional Defendants"), and Defendants Longevity Medical Supply Inc., Acupuncture Now P.C, Healthway Medical Care P.C., Jules Parisien, and SB Chiropractic P.C. ("Answering Defendants"). / Defendant Disla and Additional Defendants have failed to appear, answer or otherwise move in this action. Nor did they submit opposition to the instant motion for a default judgment. Plaintiff has submitted unrebutted evidence demonstrating compliance with the requirements of CPLR § 3215. Plaintiff is entitled to a default judgment and the declaratory relief sought in the Complaint against Defendant Disla and Additional Defendants. See Hertz Vehicles, LLC v. Best Touch PT, P. C., 162 A.D.3d 617 (I st Dep't 2018) (properly awarding 160607/2017 AMERICAN TRANSIT INSURANCE vs. DISLA, CHRISTOPHER Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 11/26/2018 09:19 AM NYSCEF DOC. NO. 22 INDEX NO. 160607/2017 RECEIVED NYSCEF: 11/26/2018 declaratory judgment by default upon Plaintiff's showing proof of facts constituting the claims and Defendant's failure to appear in action or oppose motion). Answering Defendants Acupuncture Now P.C., Healthway Medical Care P.C., Jules Parisien MD, Longevity Medical Supply Inc., and SB Chiropractic P.C., filed untimely Answers to the Complaint more than five months after the Answering Defendants were served with the Complaint, and the day after th.ey were served with notice of the instant default motion. (NYSCEF 2, 7, 19). The Defendants have given no reasonable excuse as to why they failed to timely answer the complaint. In 'lddition, any contention that Plaintiff accepted the untimely Answer by failing to reject it fails, as Defendants' answer was served after the motion for default judgment was made. Estrella v. Herrera, 12 A.D.3d 320, 321 (1st Dep't 2005). Accordingly, Plaintiff's motion for default judgment is granted as to the Answering Defendants. The Defendants may seek a vacatur of the instant default judgment if they can satisfy the requirements of CPLR §5015 or CPLR §317, or any other applicable law. Answering Defendant Longevity Medical Supply Inc. ("Longevity"), filed a timely Answer with Counterclaims on March 29, 2018. Plaintiff seeks summary judgment against the Answering Defendant Longevity. Answering Defendant Longevity did not file an opposition to the motion for Summary Judgment. Summary judgment is an appropriate remedy when there are no material issues of fact to be decided at a trial. When material issues of fact do exist; summary judgment will not be granted. See, e.g., Borst v Lower Manhattan Dev. Corp, 162 A.D.3d 581, 582 (1st Dep't 2018). Under New York law, assignees "stand in the shoes" of the assignor and thus acquire no greater rights than the assignor. See Am. States Ins. Co. v Huff, 119 A.D.3d 478, 479 (1st Dep't 2014). Defendant Longevity, as assignee of Defendant Disla, is only entitled to that to which 160607/2017 AMERICAN TRANSIT INSURANCE vs. DISLA,"CHRISTOPHER Motion No. 001 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/26/2018 09:19 AM NYSCEF DOC. NO. 22 INDEX NO. 160607/2017 RECEIVED NYSCEF: 11/26/2018 Disla is entitled. As determined above, Plaintiff is obtaining a default judgment against Disla granting the requested declaratory relief that Disla is not entitled to No-Fault benefits under American Transit Insurance Company's policy. Accordingly, the Defendant Longevity is similarly not entitled to such benefits under the policy. See New York and Presby!. Hosp. v Country-Wide Ins. Co., 17 N.Y.3d 586, 592 (2011) (as an assignee of all the rights, privileges and remedies to which the insured was entitled under the No-Fault Law, the provider stood in the shoes of the insured and acquired no greater rights than he had. Because the insured lost his benefits, the assignment "effectively became worthless".). Plaintiffs unopposed motion for summary judgment is granted Therefore it is: ORDERED Plaintiffs Motion for a Default Judgment against all Defendants is Granted; it is further; ORDERED Plaintiffs Motion for Summary Judgment against Defendant Longevity Medical Supply Inc. is Granted; and it is further ORDERED that, consistent with the foregoing, it is adjudged and declared that Defendant Christopher Disla has breached a policy condition of the American Transit policy and therefore, Defendants Bronx Medical Diagnostic P.C., Haar Orthopaedics & Sports Medicine, P.C., Optimus Products of USA Corp., Longevity Medical Supply Inc., Acupuncture Now P.C, Healthway Medical Care P.C., Jules Parisien, and SB Chiropractic P.C. are not entitled to nofault coverage or first party coverage, as a result of a motor vehicle accident that occurred on January 19, 2017, and that none of the defendants are entitled to first party no-fault benefits, together with costs and disbursements in this action; and it is further 160607/2017 AMERICAN TRANSIT INSURANCE vs. DISLA, CHRISTOPHER Motion No. 001 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 11/26/2018 09:19 AM NYSCEF DOC. NO. 22 INDEX NO. 160607/2017 RECEIVED NYSCEF: 11/26/2018 ORDERED that upon presentation of a copy of this Decision and Order with notice of entry, accompanied by a proper form of judgement, the Clerk is hereby directed to pe~it entry of judgment in favor of Plaintiff American Transit Insurance Company and against Defendants Christopher Disla, Bronx Medical Diagnostic P.C., Haar Orthopaedics & Sports Medicine, P.C., Optimus Products of USA Corp., Longevity Medical Supply Inc., Acupuncture Now P.C, Healthway Medical Care P.C., Jules Parisien, and SB Chiropractic P.C. This constitutes the Decision and Order of the Court. 11/14/2018 .CQH£N DATE J.S.C. CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN GRANTED D DENIED 160607/2017 AMERICAN TRANSIT INSURANCE vs. DISLA, CHRISTOPHER Motion No. 001 4 of 4 D D OTHER REFERENCE Page 4 of 4

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