American Tr. Ins. Co. v Alegria- Pailla

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American Tr. Ins. Co. v Alegria-Pailla 2020 NY Slip Op 34078(U) December 10, 2020 Supreme Court, New York County Docket Number: 161869/2018 Judge: Debra A. James 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 12/11/2020 10:57 AM NYSCEF DOC. NO. 18 INDEX NO. 161869/2018 RECEIVED NYSCEF: 12/11/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART · IAS MOTION 59EFM Justice ---------------------------------------------------------------------------X AMERICAN TRANSIT INSURANCE COMPANY, INDEX NO. MOTION DATE Plaintiff, 161869/2018 07/21 /2020 MOTION SEQ. NO. 001 -vKATHERINE ALEGRIA-PAILLA, CITIMEDICAL I, PLLC,D.U.P. PHYSICAL THERAPY P.C.,GENTLE WAY CHIROPRACTIC P.C.,HEALTHY CHOICES MEDICAL CARE P.C.,LIDA'S MEDICAL SUPPLY INC., and YSC TRINITY ACUPUNCTURE P.C., DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 JUDGMENT - DECLARATORY were read on this motion to/for ORDER Upon the foregoing documents, it is ORDERED that the motion of plaintiff American Transit Insurance Company for leave to enter a default judgment against defendants Katherine Tatiana Alegria-Pailla, Citimedical I, PLLC, D.U.P. Physical Therapy, P.C., Gentle Way Chiropractic P.C., Healthy Choices Medical Care P.C., Lida's Medical Supply Inc., and YSC Trinity Acupuncture P.C. i$ denied, with leave to renew upon the submission of proper papers, within thirty (30) days of service by regular first class mail of a copy of this order with notice of entry upon defendants at their last known addresses. 1 of 4 161869/2018 AMERICAN TRANSIT INSURANCE vs. ALEGRIA-PAILLA, KATHERINE Mntinn Ii.In nn1 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 12/11/2020 10:57 AM NYSCEF DOC. NO. 18 INDEX NO. 161869/2018 RECEIVED NYSCEF: 12/11/2020 DECISION This declaratory judgment action arises out of a motor vehicle accident that occurred on April 27, 2018, when the vehicle operated by plaintiff's . Pailla insured, (Alegria-Pailla) in which was a defendant passenger, Katherine was Alegria- involved in a collision with another vehicle (NY St Cts Elec Filing [NYSCEF] Doc No. ~~ 12, Ethan A. Rothschild [Rothschild] affirmation, exhibit F, 11 and 15; NYSCEF Doc No. 9, Rothschild affirmation, exhibit C at 4). Alegria-Pailla received medical treatment from defendants Ci timedical I, Chiropractic Medical P.C., to (NYSCEF No. Physical Therapy, Healthy no-fault 12, ~~ Choices and defendants). receive Doc D. U. P. Inc., Supply (collectively, rights PLLC, Medical Trinity YSC Alegria-Pailla benefits 18-19). to P. C., Care Gentle Way P.C., Lida's Acupuncture has P.C. assigned such medical After Alegria-Pailla her providers failed to appear for two independent medical examinations, plaintiff denied all coverage to defendants (id., ~ 36). Plaintiff then commenced this action for a judgment declaring that it is not obligated to provide no coverage for first-party benefits to defendants for treatment they rendered to their assignee, arising out of the April 27, 2018 motor vehicle accident. Plaintiff now moves for entry of a default judgment against all defendants. 161869/2018 AMERICAN TRANSIT INSURANCE vs. ALEGRIA·PAILLA, KATHERINE Motion No. 001 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 12/11/2020 10:57 AM NYSCEF DOC. NO. 18 INDEX NO. 161869/2018 RECEIVED NYSCEF: 12/11/2020 ~n Plaintiff has submitted a complaint verified by employee of plaintiff, which is sufficient proof of the merits of its claim. I It has also filed affidavits of service of process, as required under CPLR 3215(f). However, CPLR 2103 governs the service of papers in a pending action. Where a party is not represented, CPLR 2103 in pertinent part, method specified that '~service will states,· shall be upon the party by a in paragraph one, subdivision (b) of this rule." (c) two, four, five or six of It is well settled that "service be deemed complete upon mailing, and a properly executed affidavit of service will raise a presumption.that proper mailing occurred" (Matter of ATM One, LLC v Landaverde, (2004] [citations omitted]). 2 NY3d 472, 478 Here, the affidavit of service sworn to March 11, 2020 with respect to the motion 161869/2018 AMERICAN TRANSIT INSURANCE vs. ALEGRIA-PAILLA, KATHERINE Motion No. 001 3 of 4 papers~ states only Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 12/11/2020 10:57 AM NYSCEF DOC. NO. 18 INDEX NO. 161869/2018 RECEIVED NYSCEF: 12/11/2020 that the request for judicial intervention was served upon defendants, and makes no mention of any service of the actual motion papers (NYSCEF Doc No. 14 at 1). Thus, plaintiff has failed to establish service of the motion, and therefore, there is no proof that defendant defaulted as required pursuant to CPLR 3215(f). 12/10/2020 DATE CHECK ONE: CASE DISPOSED GRANTED 0 DENIED APPLICATION: SETTLE ORDER . CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 161869/2018 AMERICAN TRANSIT INSURANCE vs. ALEGRIA-PAILLA, KATHERINE Motion No. 001 4 of 4 D D OTHER REFERENCE Page4of 4

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