State Farm Mut. Auto. Ins. Co. v Heal-Rite PT, PC

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State Farm Mut. Auto. Ins. Co. v Heal-Rite PT, PC 2020 NY Slip Op 32913(U) September 4, 2020 Supreme Court, New York County Docket Number: 157056/2019 Judge: Paul A. Goetz 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. [* 1] INDEX NO. 157056/2019 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 09/04/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: IAS MOTION 47EFM PART HON. PAUL A. GOETZ Justice --------------------------------------------------------------------------------X STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Plaintiff, INDEX NO. 157056/2019 MOTION DATE MOTION SEQ. NO. _ _ _ 00_1_--1 -vHEAL-RITE PT, PC, ET AL., DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 36-53, 56-68 were read on this motion to/for DEFAULT JUDGMENT In this action, plaintiff State Farm Mutual Automobile Insurance Company seeks a declaration that it has no obligation to pay no-fault claims arising out of a January 24, 2019 automobile accident and seeks a permanent stay of all arbitrations and/or lawsuits by defendants relating to such claims. Plaintiff now moves pursuant to CPLR 3215 for a default judgment against defendants HEAL-RITE PT, P.C., LONGEVITY MEDICALSUPPL Y, INC., MYOCARE PT, P.C., CLASSIC MEDICAL DIAGNOSTIC REHAB, P.C., DAVID ISRAEL, M.D., NEW MILLENNIUM MEDICAL IMAGING, P.C., RIGHTWAY PHARMACY, INC., RED OAK SUMMONS MEDICAL, P.C., AAA MEDICAL DME INC. a/k/a AAA MEDICAL, AHA ACUPUNCTURE, P.C., BEST HANDS-ON PHYSICAL THERAPY, P.C., DE SOUSA CHIROPRACTIC, P.C., DYNAMIC MEDICAL IMAGING, P.C., RED CORE PT/PTA AND REHABILITATION, PLLC, SUNNY ACUPUNCTURE, P.C. SUNNY ACUPUNCTURE, P.C., WELLNESSPHYSICAL THERAPY, P.C., BROWNSVILLE CHIROPRACTIC P.C., CITIMEDICAL I, PLLC, M & D ELITE PHARMACY, LLC, METROPOLITAN MF,DICAL & SURGICAL, P.C., MILL MEDICAL, P.C., NYC MADISON AVENUE MEDICAL, P.C., Page 1 of4 1 of 4 [* 2] INDEX NO. 157056/2019 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 09/04/2020 ALFORD A. SMITH M.D., P.C., SHERMAN-ABRAMS LABORATORY, INC., BACK PAIN CHIROPRACTIC, P.C., KATAEVA ACCESS PT, P.C., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, NORTHERN .MEDICAL CARE, P.C., and FELECIA FELDER. Plaintiff also moves pursuant to CPLR 306-b to extend the time to serve defendant RASHA WN SHAMAR BROWN. Defendants LONGEVITY MEDICAL SUPPLY, INC., MICHELE A. GLISPY, L.A.C., CITIMEDICAL I PLLC, NYC MADISON AVENUE MEDICAL P.C., ALFORD A. SMITH M.D., P.C., AND METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION cross-move for an order pursuant to CPLR 5015(a)(l) vacating their default and pursuant to CPLR 3012(d) extending defendants' time to answer the complaint. Plaintiff has demonstrated its entitlement to a default judgment by submitting proof of service, proof of the facts constituting its claims through its affidavits and exhibits, and proof of defendants' default. CPLR 3215; Nouveau Elevator Ind. v. Tracey Towers Hous., 95 A.D.3d 616 (1st Dep't 2012). Further, defendants' cross-motion to vacate their default must be denied as they have failed to offer proof of a reasonable excuse for a default. In support, defendants rely on the affirmation of their counsel, Oleg Rybak, who states that because the service was effectuated through the Secretary of State, the defendants did not timely receive the summons and complaint in this action. However, the affirmation is insufficient as it was made by someone without personal knowledge of the facts and, in any event, the defendants' purported excuse is insufficient. See NYCTL 2015-A Trust v. Dif.fo Properties Corp., 171 A.D.3d 538, 539 (1st Dep't 2019). Finally, in light of plaintiffs efforts to serve defendant RASHA WN SHAMAR BROWN, the absence of any prejudice to defendants, and in the interest of justice, plaintiffs motion to Page 2 of4 2 of 4 [* 3] INDEX NO. 157056/2019 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 09/04/2020 extend its time to serve this defendant must be granted. Pennington v. Da Nico Restaurant, 123 A.D.3d 627 (1st Dep't 2014). Accordingly, it is ORDERED that plaintiffs motion for a default judgment is granted and the cross-motion is denied; and it is further ORDERED, ADJUDGED and DELCARED that plaintiff STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY owes no duty to pay any no-fault claims of defendants HEAL-RITE PT, P.C., LONGEVITY MEDICALSUPPL Y, INC., MYOCARE PT, P.C., CLASSIC MEDICAL DIAGNOSTIC REHAB, P.C., DAVID ISRAEL, M.D., NEW MILLENNIUM MEDICAL IMAGING, P.C., RIGHTWAY PHARMACY, INC., RED OAK SUMMONS MEDICAL, P.C., AAA MEDICAL DME INC. a/k/a AAA MEDICAL, AHA ACUPUNCTURE, P.C., BEST HANDS-ON PHYSICAL THERAPY, P.C., DE SOUSA CHIROPRACTIC, P.C., DYNAMIC MEDICAL IMAGING, P.C., RED CORE PT/PTA AND REHABILITATION, PLLC, SUNNY ACUPUNCTURE, P.C. SUNNY ACUPUNCTURE, P.C., WELLNESSPHYSICAL THERAPY, P.C., BROWNSVILLE CHIROPRACTIC P.C., CITIMEDICAL I, PLLC, M & D ELITE PHARMACY, LLC, METROPOLITAN MF,DICAL & SURGICAL, P.C., MILL MEDICAL, P.C., NYC MADISON AVENUE MEDICAL, P.C., ALFORD A. SMITH M.D., P.C., SHERMAN-ABRAMS LABORATORY, INC., BACK PAIN CHIROPRACTIC, P.C., KATAEVA ACCESS PT, P.C., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, NORTHERN MEDICAL CARE, P .C., and FELECIA FELDER; and it is further ORDERED that all no-fault lawsuits and arbitrations brought by the defaulting defendants are permanently stayed; and it is further Page 3 of 4 3 of 4 [* 4] INDEX NO. 157056/2019 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 09/04/2020 ORDERED that the causes of action against the remaining defendants are hereby severed and continued; and it is further ORDERED plaintiff shall have 60 days from the date of entry of this order to serve defendant RASHA WN SHAMAR BROWN. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of 4 4 of 4

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