State Farm Fire & Cas. Co. v Advantage Radiology, P.C.

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State Farm Fire & Cas. Co. v Advantage Radiology, P.C. 2020 NY Slip Op 33540(U) October 26, 2020 Supreme Court, New York County Docket Number: 159912/2019 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. 42 ...: INDEX NO. l5991 2 / 2 0l9 RECEIVED NYSCEF: 10/27/2020 .. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 28EFM ----------------------------~------------------------------------------------------X STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, ADVANTAGE RADIOLOGY, P.C.,ALL BEST TRADING, INC.,ALL CITY FAMILY HEALTHCARE CENTER, INC.,CONTEMPORARY ORTHOPEDICS, PLLC,CVS RX, INC. D/B/A EXPRESS PHARMACY, EJ CHIROPRACTIC, HUDSON PAIN MANAGEMENT, CHINWEIKE IZEOGU, M.D., JC CHIROPRACTIC, PLLC,NEXTSTEP HEALING, INC.,OCEAN RADIOLOGY, P.C.,OM PHYSICAL THERAPY, PLLC,PRC SUPPLIES, INC.,ROCKA WAY PARK MEDICAL, P.C.,SCAPHOID REHABILITATION, LLC,SEDATION VACATION PERI OPERATIVE MEDICINE, PLLC,SIL VER NEEDLE ACUPUNCTURE, P.C.,VK CHIROPRACTIC, P.C.,SENGERLIE EDOUARD INDEX NO. MOTION DATE MOTION SEQ. NO. 159912/2019 10/06/2020 00 I DECISION+ ORDER ON MOTION Defendant. -----------------------------------------------------------------------------------X HON. CAROL RUTH FEINMAN: The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30,31,32,33,34,35,36,37,38,39,40 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 Sengerlie Edouard ("Edouard") 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 #32-9241-H 19, relating to the collision involving defendant Edouard that occurred on June 9, 2019. Plaintiff asserts that the incident is a non-covered event under the nofault regulations. The court notes that the defendants 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. Plaintiff also seeks to discontinue the instant action against defendant Chinweike Izeogu, M.D., as plaintiff made a good faith effort in namin~ SB1f1e:;defendant as a party, but now no longer ~~~~12/~.019 __~TATE FARM FIRE AND CASUALTY vs. ADVANTAGE RADIOLOGY, P.C. Paae 1nf4 [*!FILED: 2] NEW YORK COUNTY CLERK 10/27/2020 03: 19 PMI NYSCEF DOC. NO. 42 INDEX NO. 159912/2019 RECEIVED NYSCEF: 10/27/2020 seeks to litigate this action against defendant Chinweike Izeogu, M.D.There is no opposition submitted by any of the defaulting defendants herein. -;; 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 Seat rain 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]; Capellino 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 2018]; Rivera v Correction Officer L. Banks, 135 AD3d 621 [I5t Dept 2016]. To satisfy the requirement of CPLR 3215(f), 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, [2003]; see also for example, St. Paul Fire & Mar Ins. Co. v A.L. Eastmond & Sons, 233 AD2d 294 [pt 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. of Ins. Co., 90 NY2d 195, [1997]. 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. Seefor example, Benzaken v. Verizon Communications, Inc., 21 AD3d 864 [2d Dept 2005]. 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 ofrelevant 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 plaintiff's 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 159912/2019 STATE FARM FIRE AND CASUALTY vs. AbVANT.iiGE RADIOLOGY, P.C. Motion No. 001 · Page 2 of 4 [*!FILED: 3] NEW YORK COUNTY CLERK 10]27/2020 03: 19 PMI NYSCEF DOC. NO. 42 INDEX NO. 159912 1 2019 1 RECEIVED NYSCEF: 10/27/2020 motion, and have neither provided a reasonable excuse for default, nor a mer_itorious d~fense. Therefore, based upon the foregoing, the plaintiff's application for a default Judgment is granted against the defaulting defendants. Thus, it is hereby ORDERED that Plaintiffs 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 ADVANTAGE RADIOLOGY, P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant ALL BEST TRADING INC., and it is further . ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant ALL CITY FAMILY HEAL TH CARE CENTER, INC., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant CONTEMPORARY OTRHOPEDICS, PLLC., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant CVS RX, INC., d/b/a EXPRESS PHARMACY, and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant EJ CHIROPRACTIC, and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant HUDSON PAIN MANAGEMENT, and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant OCEAN RADIOLOGY, P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant OM PHYSICAL THERAPY, PLLC., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant PRC SUPPLIES, INC., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant SCAPHOID REHABILITATION, LLC., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant SEDATION VACATION PERI OPERATIVE MEDICINE, PLLC., and it is further 159912/2019 STATE FARM FIRE AND CASUALTY vs. ADVANTAGE RADIOLOGY, P.C. Motion No. 001 4 of 5 Page 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 10/27/2020 03: 19 PMI NYSCEF DOC. NO. 42 INDEX NO. 159912/2019 RECEIVED NYSCEF: 10/27/2020 ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant SILVER NEEDLE ACUPUNCTURE, P.C., and it is further ORDERED that the Clerk of the Court is hereby directed to enter a default judgment against defendant SENGERLIE EDOUARD, and it is further ORDERED and ADJUDGED that Defendant Edouard 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 EDOUARD's vehicle was garaged, or had defendant EDOUARD 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 June 9, 2019 collision; and it is further ORDERED and ADJUDGED that this action is hereby discontinued against defendant CHINWEIKE IZEOGU, M.D. The forgoing constitutes the Decision and Order of the Court. tiq,...~ DATED: New York, NY '2020 Carol Ruth Feinman, AJSC 159912/2019 STATE FARM FIRE AND CASUALTY vs. ADVANTAGE RADIOLOGY, P.C. Motion No. 001 5 of 5 Page 4 of 4 I

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