American Tr. Ins. Co. v Joseph

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American Tr. Ins. Co. v Joseph 2019 NY Slip Op 31749(U) June 19, 2019 Supreme Court, New York County Docket Number: 158209/2018 Judge: Louis L. Nock 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 06/20/2019 12:32 PM NYSCEF DOC. NO. 20 INDEX NO. 158209/2018 RECEIVED NYSCEF: 06/20/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LOUIS L. NOCK PART Justice --------------------------------------------------------------------------------X IAS MOTION 38EFM INDEX NO. 158209/2018 MOTION DATE 0412612019' 04/26/2019 AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff, -v- MOTION SEQ. NO. YVONNIE JOSEPH, AMBEL ACUPUNCTURE, PC,BASEM MANSOUR, PT, PC.BRIDGES PSYCHOLOGICAL SERVICES, PC.COLIN CLARKE MD, P.C.,ECLIPSE MEDICAL IMAGING, PC.EXON MEDICAL EQUIPMENT, PC.METROPOLITAN INTERVENTIONAL MEDICAL SERVICES, PC.PALM CHIROPRACTIC, PC,QUEENS MEDICAL DIAGNOSTIC, PC 001 001 DECISION AND ORDER Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for JUDGMENT-DECLARATORY The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, the motion of plaintiff American Transit Insurance Company ("Plaintiff') for entry of a default judgment and declaratory judgment against defendants Yvonnie Joseph ("Joseph"), Ambel Acupuncture, PC, Basem Mansour, PT, PC, Bridges Psychological Services, PC, Colin Clarke Md, P.C., Eclipse Medical Imaging, PC, Metropolitan Interventional Medical Services, PC, Palm Chiropractic, PC, Queens Medical Diagnostic, PC (together, "Defendants") is granted on default and without opposition, in accord with the following memorandum and for the reasons set forth in the motion. 1 1 Subsequent to the filing of this motion, Plaintiff settled its claims with defendant Exon Medical Equipment, PC ("Exon'') and that portion of the motion that seeks judgment against Exon is withdrawn (NYSCEF Doc. No. 19). 158209/2018 AMERICAN TRANSIT INSURANCE vs. JOSEPH, YVONNIE Motion No. 001 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 06/20/2019 12:32 PM NYSCEF DOC. NO. 20 INDEX NO. 158209/2018 RECEIVED NYSCEF: 06/20/2019 Plaintiff American Transit Insurance Company ("Plaintiff') issued a motor vehicle insurance policy to Joseph, under a New York policy of insurance numbered B514107 (the "Policy"). The Policy includes a no-fault endorsement which provided coverage to an insured or an eligible person in the amount of $50,000 for all necessary expenses resulting from a motor vehicle accident. On September 1, 2017, a vehicle owned by Joseph was involved in a motor vehicle accident. Joseph made a claim to Plaintiff as a purported eligible person of the policy. The remaining defendants are health care providers who purportedly provided health care services to Joseph in connection with the accident, and to whom she assigned her rights to collect no-fault benefits. All Defendants were served with process and have failed to appear in this action. Plaintiff has submitted proof that it mailed notices to Joseph on three separate occasions requesting that she appear for an Independent Medical Examination ("IME"), and that Joseph failed to appear for each scheduled IME (NYSCEF Doc. No. 8). Failure to submit to a duly requested IME constitutes a breach of a condition precedent to coverage under a no-fault policy (Hertz Corp v Active Care Medical Supply Corp., 123 AD3d 311 [1st Dept 2015]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Plaintiff, therefore, has the right to deny Joseph's claims and those of her assignees (id.). Accordingly, it is ORDERED that Plaintiff's motion for entry of a default judgment and declaratory judgment against defendants Yvonnie Joseph, Ambel Acupuncture, PC, Basem Mansour, PT, PC, Bridges Psychological Services, PC, Colin Clarke Md, P.C., Eclipse Medical Imaging, PC, Metropolitan Interventional Medical Services, PC, Palm Chiropractic, PC, Queens Medical Diagnostic, PC is granted; and it is further 158209/2018 AMERICAN TRANSIT INSURANCE vs. JOSEPH, YVONNIE Motion No. 001 001 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 06/20/2019 12:32 PM NYSCEF DOC. NO. 20 INDEX NO. 158209/2018 RECEIVED NYSCEF: 06/20/2019 ADJUDGED and DECLARED that defendant Yvonnie Joseph is not an eligible injured person entitled to no fault benefits under American Transit insurance policy B514107, Claim No. 1007680-02 or under New York Department of Insurance Regulation 68; and it is further ADJUDGED and DECLARED that plaintiff is not obligated to honor or pay claims for reimbursement submitted by Ambel Acupuncture, PC, Basem Mansour, PT, PC, Bridges Psychological Services, PC, Colin Clarke Md, P.C., Eclipse Medical Imaging, PC, Metropolitan Interventional Medical Services, PC, Palm Chiropractic, PC, or Queens Medical Diagnostic, PC, as assignees of defendant Yvonnie Joseph, under American Transit insurance policy B514107, Claim No. 1007680-02, and Plaintiff is not required to provide, pay, honor, or reimburse any claims set forth in this proceeding, in any current or future proceeding, including, without limitation arbitration and/or lawsuits seeking to recover no-fault benefits arising under American Transit policy B514107, Claim No. 1007680-02 from the alleged accident of September 1, 2017 involving defendant Yvonnie Joseph; and it is further ADJUDGED and DECLARED that Plaintiff is not required to provide, pay, or honor any current or future claims for no-fault benefits under the Mandatory Personal Injury Protection endorsement under American Transit policy B514107, Claim No. 1007680-02, and Plaintiff is not required to provide, pay, honor, or reimburse any claims set forth in this proceeding, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under American Transit policy B514107, Claim No. 1007680- 158209/2018 AMERICAN TRANSIT INSURANCE vs. JOSEPH, YVONNIE Motion No. 001 001 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 06/20/2019 12:32 PM NYSCEF DOC. NO. 20 INDEX NO. 158209/2018 RECEIVED NYSCEF: 06/20/2019 02 from the alleged accident of September 1, 2017 involving defendant Yvonnie Joseph. 6/19/2019 DATE CHECK ONE: CASE DISPOSED GRANTED D "' DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158209/2018 AMERICAN TRANSIT INSURANCE vs. JOSEPH, YVONNIE Motion No. 001 001 4 of 4 0 D OTHER REFERENCE Page 4 of 4

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