American Tr. Ins. Co. v Excell Clinical Lab

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American Tr. Ins. Co. v Excell Clinical Lab 2020 NY Slip Op 34123(U) December 10, 2020 Supreme Court, New York County Docket Number: 650965/2020 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 02:45 PM NYSCEF DOC. NO. 11 INDEX NO. 650965/2020 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 INDEX NO. AMERICAN TRANSIT INSURANCE COMPANY 650965/2020 MOTION DATE Plaintiff, 07/21/2020 MOTION SEQ. NO. 001 -vDECISION + ORDER ON MOTION EXCELL CLINICAL LAB as assignee of DANILO SANCHEZ, Defendant. ---------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10 were read on this motion to/for JUDGMENT - DEFAULT ORDER Upon the foregoing documents, it is ORDERED that the motion brought by plaintiff American Transit Insurance Company for leave to enter a default judgment against defendant Excell Clinical Lab a/a/o Danilo Sanchez is denied, without prejudice to renewal of this application by show cause order, submitting the proper papers, within thirty (30) days of service of a copy of this order with notice of entry by regular first class mail upon defendant at its last known address. DECISION Plaintiff American Transit action under Insurance Law 5106 Insurance (c) Company to CPLR 3215, for leave to enter a 650965/2020 AMERICAN TRANSIT INSURANCE vs. EXCELL CLINICAL LAB A/A/0 Motion No. 001 1 of 5 this. for a de novo review of a master arbitrator's award of 'no-fault benefits. pursuant brings Plaintiff moves, default judgment Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 12/11/2020 02:45 PM NYSCEF DOC. NO. 11 INDEX NO. 650965/2020 RECEIVED NYSCEF: 12/11/2020 against defendant Excell Clinical Lab a/a/o Danilo Sanchez. Defendant has not submitted any opposition. Background According to the complaint, which is verified by plaintiff's counsel, defendant furnished medical services to Danilo Sanchez (Sanchez), who allegedly sustained injuries in involving a motor vehicle insured by plaintiff an accident (NY St Cts Elec ling [NYSCEF] Doc No. 8, Adam Waknine affirmation, exhibit A, 3) . ~ The policy contained a personal injury personal protection benefits endorsement (id., 7). ~ Sanchez assigned his rights to receive no-fault benefits to defendant (id., arose over the amount due, defendant ~ 3). When a dispute commenced a no-fault arbitration proceeding under American Arbitration Association No. 99-18-1108-6693 (id.,~ On September 3, 4). 2019, the no-fault arbitrator rendered an award in favor of defendant in the amount of $6,259.50 (id., ~ 7), and on January 14, 2020, arbitrator confirmed the arbitrator's determination id. a master ~ 10). Plaintiff then commenced this action to obtain de novo review of the master arbitrator's award under Insurance Law§ 5106 (c). The complaint alleges that Sanchez did not incur medically necessary services, reasonably and necessary services, dr services related to the claimed motor vehicle accident ~~ 20-22). (NYSCEF Doc No. 8, It further alleges that defendant or Sanchez failed to establish or submit timely or complete proof of 65096512020 AMERICAN TRANSIT INSURANCE vs. EXCELL CLINICAL LAB A/A/0 Motion No. 001 2 of 5 the claim or Page 2of 5 [*FILED: 3] NEW YORK COUNTY CLERK 12/11/2020 02:45 PM NYSCEF DOC. NO. 11 INDEX NO. 650965/2020 RECEIVED NYSCEF: 12/11/2020 furnish timely notice of the alleged motor vehicle accident (id., ~~ 14-15 and 17-18). Plaintiff now moves for default judgment on the ground that defendant failed to timely answer or otherwise appear in this action. Discussion CPLR 3215 (a) reads, in part, that "[w]hen a defendant has failed to appear, plead or proceed to trial the plaintiff may seek a default judgment against him." A party seeking a default judgment must submit proof of jurisdiction, a default, and "proof by affidavit made by the party of the facts 531, 534 omitted]; cons ti tu ting the claim" [1st Dept 1987) (Joosten v Gale, 12 9 AD2d [internal quotation marks and citation see also CPLR 3215 [f]). The moving party "need only submit sufficient evidence to enable a court to determine if the cause of action is viable" (Deutsche Bank Natl. Trust Co. v Amoah, AD3d -, 2020 NY Slip Op 06242, *1 [2d Dept 2020]; accord Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003)). verified by someone or an affidavit "[A] complaint executed by a party with personal knowledge of the merits of the claim" will suffice (Beltre v Babu, 32 AD3d 722, 723 [1st Dept 2006]). In support, plaintiff submits the complaint and an affidavit of service sworn to February 19, 2020. The affidavit. shows that service of the summons and complaint was made upon "Olga Visconti," 650965/2020 AMERICAN TRANSIT INSURANCE vs. EXCELL CLINICAL LAB A/A/O Motion No. 001 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 12/11/2020 02:45 PM NYSCEF DOC. NO. 11 INDEX NO. 650965/2020 RECEIVED NYSCEF: 12/11/2020 defendant's managing agent, on February 15, 2020 at 11:15 a.m. at 1 Ethel Rd, Edison, NJ 08817 (NYSCEF Doc No. 8 at 9). Plaintiff has established that service of process was properly effectuated and that the motion at bar was served upon defendant, and that defendant has not timely answered the complaint or appeared in this action. However, plaintiff has failed to submit the requisite proof of the facts constituting the claim. The complaint is not verified by the party or other person with knowledge of the facts, but by \ counsel. "[A] complaint verified by counsel is purely hearsay, devoid of evidentiary value, and thus insufficient to support entry of a judgment pursuant to CPLR 3215" (Beltre, 32 AD3d at 723). In addition, where, as is the case here, de nova review of a master arbitrator's provided award were not is sought medically on the or ground that reasonably plaintiff, when moving for a default judgment, the services necessary, the is also permitted • to rely upon an expert's affirmation setting forth a peer review as proof of the facts constituting the claim (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768, 770 [2d Dept 2016]}. Plaintiff has offered neither an expert's peer review or an expert affirmation or affidavit in support of its contention that the treatment Sanchez received was medically necessary. Nor has its plaintiff submitted admissible evidence that supports allegations that defendant or Sanchez failed to furnish timely or 4 ofCLINICAL 5 650965/2020 AMERICAN TRANSIT INSURANCE vs. EXCELL LAB A/A/0 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 12/11/2020 02:45 PM NYSCEF DOC. NO. 11 INDEX NO. 650965/2020 RECEIVED NYSCEF: 12/11/2020 complete proof of the claim or timely notice of the claimed motor vehicle accident. 12/10/2020 RA~ J DATE CHECK ONE: CASE DISPOSED GRANTED 0 DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ NON·FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 650965/2020 AMERICAN TRANSIT INSURANCE vs. EXCELL CLINICAL LAB A/A/O Motion No. 001 5 of 5 s::s.c. D D OTHER REFERENCE Page Sof 5

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