State Farm Mut. Auto. Ins. Co. v Advanced Pain Care Med. P.C.

Annotate this Case

Download PDF

State Farm Mut. Auto. Ins. Co. v Advanced Pain Care Med. P.C. 2020 NY Slip Op 33537(U) October 26, 2020 Supreme Court, New York County Docket Number: 157430/2019 Judge: Carol Ruth Feinman 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 10/27/2020 03: 19 PMI NYSCEF DOC. NO. 34 INDEX NO. 157430/2019 RECEIVED NYSCEF: 10/27/2020 '(,f, '. .. ~ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 28EFM -----------------------------------------------------------------------------------X STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, INDEX NO. MOTION DATE Plaintiff, -v- MOTION SEQ. NO. ADVANCED PAIN CARE MEDICAL, P.C.,PUSHPA R. BHANSALI, PHYSICIAN, P.C.,ERNEST BUBERMAN, D.C., MOUNT SINAI DOCTORS FACULTY PRACTICE A/KIA FPA HOSPITAL BASED NON PAR MT, MEDCARE SUPPLY, INC.,MOUNT SINAI HOSPITALS GROUP, INC. D/B/A MT SINAI HOSPITAL QUEENS, NICA ACUPUNCTURE, P.C.,OCEAN ONE PHYSICAL THERAPY P.C.,OLEG BARSHAY, D.C., STAND-UP MRI OF BENSONHURST, P.C.,STANISLAV KAMINSKY DPT, PT, P.C.,MARTINE DELESCA, FLORENCE MICHAUD Defendant. 157430/2019 10/15/2020 001 DECISION+ ORDER ON MOTION ,i -.• -----------------------------------------------------------------------------------X HON. CAROL RUTH FEINMAN: The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23,24,25,26,27,28, 29, 30, 31, 32, 33 JUDGMENT - DEFAULT were read on this motion to/for Upon the foregoing documents, it is decided as follows: This civil action was brought by plaintiff to seek a declaratory judgment against all defendants herein. Plaintiff asserts that, based upon defendant Martine Delesca ("Delesca") violating the no-fault regulations, to wit: making a material representation regarding his/her residence and the primary garage location of the insured vehicle under the policy which was procured, plaintiff is not required to provide no fault insurance coverage benefits for the alleged claims under claim #32-6535-R60, relating to the collision involving defendant Delesca and passenger Florence Michaud ("Michaud") that occurred on October 22, 2018. Plaintiff asserts that the incident is a non-covered event under the no-fault regulations. The court notes that the defendant who filed an Answer herein deny such claims. Plaintiff seeks an order herein granting a default judgment against the defaulting defendants herein, due to their failure to appear in the instant action, and declaring that plaintiff is not required to provide no-fault insurance coverage benefits to the defaulting defendants. There is no opposition submitted by any of the defaulting defendants herein. r· .. 157430/2019 STATE FARM MUTUAL AUTOMOBILE vs. ADVANCED PAIN CARE MEDICAL, Motion No. 001 2 of 5 Page 1 of4 [*!FILED: 2] NEW YORK COUNTY CLERK 10/27/2020 03: 19 PMI NYSCEF DOC. NO. 34 INDEX NO. 157430/2019 RECEIVED NYSCEF: 10/27/2020 Courts have the power to use their discretion in deciding to enter a default judgment. The law and public policy favor resolving disputes on their merits. and toward that end a liberal policy has been adopted with respect to opening default judgments in furtherance of justice so that parties may have their day in court. See for Example, Picnic v Seatrain Lines, Inc., 117 AD2d 504 (1st Dept 1986]; see also, Bishop v Galasso, 67 AD2d 753 [3rd Dept 1979]; Cappel v RKO Stanley Warner Theaters, 61 AD2d 936 [1st Dept 1978); Cape/lino Abattoir, Inc. v Lieberman, 59 AD2d 986 [3rd Dept 1977]. It is well-established that a party is entitled to a default judgment pursuant to CPLR 3215 upon submitting proof of proper service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing. See for example, 154 E. 62 LLC v. 156 E. 62nd St. LLC, 159 AD3d 498 [1st Dept 20181; Rivera v Correction Officer L. Banks, 135 AD3d 621 [15t Dept 20161. To satisfy the requirement of CPLR 3215(±), a party seeking to enter a default judgment must only submit some firsthand confirmation of the facts. The standard of proof to establish entitlement to a default judgment amounts only to some firsthand confirmation of the facts. Plaintiff, by reason of defendant's failure to answer, does not have the benefit of discovery, thus the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists. See, Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, [20031; see also for example, St. Paul Fire & Mar Ins. Co. v A.L. Eastmond & Sons, 233 AD2d 294 [15t Sept 1997]. See also, Natl. Union Fire Ins. Co. of Pitt. v Sullivan, 269 AD2d 149 [1st Dept 2000); Figueroa, et al v Re/gold LLC, 178 AD3d 425 [1st Dept 2019]. An insurer may disclaim all insurance coverage based upon the fact or founded belief that the alleged injury does not arise out of an insured incident. See for example, Central Gen. Hosp. v. Chubb Grp. oflns. Co., 90 NY2d 195, [19971. The No-Fault insurer must demonstrate the facts elicited during an investigation that make up the founded belief. Circumstantial evidence is sufficient to prove such facts if a party's conduct may be reasonably inferred based upon logical inferences to be drawn from the evidence. See for example, Benzaken v. Verizon Communications. Inc., 21 AD3d 864 [2d Dept 20051. To avoid the entry of a default judgment, the defaulting party is required to demonstrate a · reasonable excuse for its default and a potentially meritorious defense to the action. See, Allstate Ins. Co v Austin, 48 AD 3d 720 [2nd Dept 2008]. After a review of relevant statutory and case law, as well as the papers submitted in support of this application, including, inter alia, the Summons and Complaint, the Affidavits of Service of the Summons and Complaint, and an Affirmation that defendants were served notice of the instant Notice of Motion and accompanying exhibits, and sufficient Affidavit facts constituting plaintiffs claim herein, the court finds that plaintiff has satisfied the statutory requirements to warrant consideration of a default judgment pursuant to CPLR §3215. The defaulting defendants have not appeared in the instant action, have not opposed the instant motion, and have neither provided a reasonable excuse for default, nor a meritorious defense. Therefore, based upon the foregoing, the plaintiffs application for a default judgment is granted against the defaulting defendants. 157430/2019 STATE FARM MUTUAL AUTOMOBILE vs. ADVANCED PAIN CARE MEDICAL Motion No. 001 . . ' 3 of 5 Page 2 of 4 [*IF!LED: 3] NEW YORK COUNTY CLERK 10/27/2020 03: 19 PMI NYSCEF DOC. NO. 34 INDEX NO. 1 s 74 30/ 2 0l9 RECEIVED NYSCEF: 10/27/2020 Thus, it is hereby / , ORDERED that Plaintiff's Motion for Default Judgment against the various defaulting defendants pursuant to C.P.L.R. §3215 is granted without opposition submitted; and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant ADVANCE PAIN CARE MEDICAL, P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant ERNEST BUBERMAN, D.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant MOUNT SINAI DOCTORS FACULTY PRACTICE a/k/a FPA HOSPITAL BASED NON PAR MT, and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant MEDCARE SUPPLY, INC., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant MOUNT SINAI HOSPITALS GROUP, INC. d/b/a MT SINAI HOSPITAL QUEENS, and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant NICA ACUPUNCTURE, P.C., and it is further . ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant OCEAN ONE PHYSICAL THERAPY P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant OLEG BARSHA Y, D.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant STAND-UP MRI OF BENSONHURST, P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant STANISLAV KAMINSKY DPT, PT, P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant MARTINE DELESCA, and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant FLORENCE MICHAUD, and it is further 157430/2019 STATE FARM MUTUAL AUTOMOBILE vs. ADVANCED PAIN CARE MEDICAL, Motion No. 001 4 of 5 Page 3 of4 I [*!FILED: 4] NEW YORK COUNTY CLERK 10/27/2020 03: 19 PMI NYSCEF DOC. NO. 34 INDEX NO. 157430/2019-l RECEIVED NYSCEF: 10/27/2020 ORDERED and ADJUDGED that Defendant DELESCA made a material misrepresentation of his/her residence in procuring the insurance policy, and it has not been contradicted or opposed herein, and it is further ORDERED and ADJUDGED that the policy would not have been issued, or would not have been issued under the same terms or at the same rate had plaintiff been aware of the true location of where defendant DELESCA's vehicle was garaged, or had defendant : . DELESCA given truthful information about same, and it is further - -~ ORDERED and ADJUDGED that plaintiff is not required to pay no-fault insurance coverage benefits to the defaulting defendants herein, arising from the October 22, 2018 collision. The forgoing constitutes the Decision and Order of the Court. · I -.21 . . DATED: II New York, NY r.. '2020 Carol Ruth Feinman, AJSC ---., ,1 Ct~::.· \.' .J .: ) .,. .L 157~30/2019 STATE FARM MUTUAL AUTOMOBILE vs. ADVANCED PAIN CARE MEDICAL Motion No. 001 ·· ' 5 of 5 Page 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.