American Tr. Ins. Co. v Cespesdes

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American Tr. Ins. Co. v Cespesdes 2019 NY Slip Op 33730(U) December 24, 2019 Supreme Court, New York County Docket Number: 161499/2017 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 12/24/2019 12:11 PM NYSCEF DOC. NO. 28 INDEX NO. 161499/2017 RECEIVED NYSCEF: 12/24/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOEL M. COHEN PART IAS MOTION 3EFM Justice ---------------------------------------------------------------------------------X AMERICAN TRANSIT INSURANCE COMPANY, INDEX NO. MOTION DATE Plaintiff, 161499/2017 02/28/2019 MOTION SEQ. NO. 001 -vFERNANDO CESPESDES, COLUMBUS IMAGING CENTER, CONCEPT MEDICAL SUPPLY, INC, DR. IBRAHIM FATIHA, CHIROPRACTIC, P.C.,MEDICAL MISSION HEALTH CARE P.C.,YY BALANCE ACUPUNCTURE HEALTH CARE P.C. DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------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, 19, 22, 23, 24, 25, 26, 27 were read on this motion for DECLARATORY JUDGMENT Upon the foregoing documents Plaintiff American Transit Insurance Company ("Plaintiff') seeks a default judgment in its declaratory judgment action against Defendant Columbus Imaging Center. Plaintiff also seeks a declaratory judgment against Fernando Cespesdes and summary judgment against the remaining defendants, Concept Medical Supply, Inc, Dr. Ibrahim Fatiha, Chiropractic, P.C., Medical Mission Health Care P.C., and YV Balance Acupuncture Health Care P.C. ("Answering Defendants") 1. The Answering Defendants oppose this motion. For the reasons described below, Plaintiff's motion is granted in part and denied in part. According to the Complaint, on November 11, 2016, Defendant Fernando Cespesdes ("Cespesdes") was a passenger in a motor vehicle accident which involved a vehicle owned by non-party American United Transportation and insured by Plaintiff. Defendant Cespesdes 1 Collectively, the Defaulting Defendant and Answering Defendants are referred to as the Providers. 161499/2017 AMERICAN TRANSIT INSURANCE vs. FERNANDO, FERNANDO Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 12/24/2019 12:11 PM NYSCEF DOC. NO. 28 INDEX NO. 161499/2017 RECEIVED NYSCEF: 12/24/2019 sought to collect No-Fault benefits, as assigned by Plaintiff, from the Providers by way of medical treatment. In exchange for the treatment, Cespesdes issued first-party assignments of his No-Fault insurance benefits, as issued by Plaintiff, to the Providers. The Providers have, in tum, submitted claims to Plaintiff alleging they rendered services to Defendant Cespesdes compensable under the terms of the policy. (NYSCEF 1). Plaintiff now seeks a declaration that it is not liable to pay No-Fault benefits to the Defendants due to Cespesdes' alleged violations of applicable insurance policy terms. Specifically, Plaintiff complains that Cespesdes' failure to attend an Independent Medical Examination (IME) constitutes a breach of the applicable insurance policy issued by Plaintiff. According to the Complaint, Cespesdes and his counsel were sent notices requesting appearance at an IME before Dr. Glenn Berman on three occasions, March 8, 2017 (scheduling an examination for March 30, 2017), March 31, 2017 (re-scheduling the examination for April 13, 2017) and on April 14, 2017 (scheduling an examination for April 27, 2017), yet Cespesdes failed to appear. Plaintiff contends that because Cespesdes is in breach of the insurance agreement, and therefore is ineligible for No-Fault payments, the medical Providers (as assignees) are unable to receive payment under the same policy. See Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 A.D.3d 559 (1st Dep't 2011). Before the Court can address Plaintiffs claims, the Court first must ensure it has jurisdiction over all defendants. Cuccia v HM Weiner and Assoc., 234 A.D.2d 26, 26 (1st Dep't 1996) (The failure to serve a summons with the complaint in this matter is a jurisdictional defect requiring dismissal of the action); see also, CPLR §304. Here, there is no Affidavit of Service on NYSCEF indicating that Defendant Cespedes was served with the Complaint. According to the two affidavits of service that are on NYSCEF, service was attempted on Mr. Cespesdes on 161499/2017 AMERICAN TRANSIT INSURANCE vs. FERNANDO, FERNANDO Motion No. 001 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 12/24/2019 12:11 PM NYSCEF DOC. NO. 28 INDEX NO. 161499/2017 RECEIVED NYSCEF: 12/24/2019 two different occasions, but was never effectuated. As such, this Court does not have jurisdiction and this action must be dismissed as against him. Further, since the relief sought against the Answering Defendants is necessarily predicated on a finding that Mr. Cespesdes is not eligible for No Fault benefits and given that Mr. Cespesdes has not been served, such relief cannot be provided to Plaintiff. Therefore, the portion of Plaintiff's motion which seeks summary judgment against the Answering Defendants is denied without prejudice. Default Judgment The unopposed portion of Plaintiffs motion which seeks a default judgment as against Defendant Columbus Imaging is Granted. As evidenced by the Affidavits of Service, Plaintiff personally served Columbus Imaging with the Summons and Complaint pursuant to CPLR §31 l(a). (NYSCEF 5). Having failed to appear after being duly served, the Defendant Columbus Imaging has defaulted in this action and, under CPLR §3215, Plaintiff is entitled to a default judgment entitling it to the declaratory relief sought in the Complaint. See Hertz Vehicles, LLC v Best Touch PT, P.C., 162 A.D.3d 617 (1st Dep't 2018) (properly awarding declaratory judgment by default upon Plaintiffs showing proof of facts constituting the claims and Defendant's failure to appear in action or oppose motion). Defendant Columbus Imaging may seek a vacatur of the instant default judgment if they can satisfy the requirements of CPLR §5015, CPLR §317 or any other applicable laws. 161499/2017 AMERICAN TRANSIT INSURANCE vs. FERNANDO, FERNANDO Motion No. 001 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 12/24/2019 12:11 PM NYSCEF DOC. NO. 28 INDEX NO. 161499/2017 RECEIVED NYSCEF: 12/24/2019 Therefore, it is: ORDERED Plaintiff's Motion for a Default Judgment against Defendant Columbus Imaging is Granted; it is further ORDERED that Plaintiff's Motion for a Declaratory Judgment against Defendant Fernando Cespesdes is Denied without prejudice; it is further ORDERED that Plaintiff's Motion for Summary Judgment against Concept Medical Supply, Inc, Dr. Ibrahim Fatiha, Chiropractic, P.C., Medical Mission Health Care P.C., and YV Balance Acupuncture Health Care P.C is Denied without prejudice; and it is further ORDERED that all parties who have been served and not defaulted shall appear for a Preliminary Conference on January 28, 2020 at 11 :00 a.m. This constitutes the Decision and Order of the Court. 12/24/2019 DATE CHECK ONE: 11 CME DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 161499/2017 AMERICAN TRANSIT INSURANCE vs. FERNANDO, FERNANDO Motion No. 001 4 of 4 D D OTHER REFERENCE Page 4 of 4

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