American Tr. Ins. Co. v Ross

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American Tr. Ins. Co. v Ross 2021 NY Slip Op 31574(U) May 10, 2021 Supreme Court, New York County Docket Number: 155373/2020 Judge: Arthur F. Engoron 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. 155373/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/10/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARTHUR F. ENGORON IAS MOTION 37EFM Justice ----------------------------------------------------------------- ----------------X AMERICAN TRANSIT INSURANCE COMPANY, INDEX NO. MOTION DATE Plaintiff, 155373/2020 05/03/2021 MOTION SEQ. NO. 001 -vSHADAY ROSS, A TO Z SUPPLIES GROUP INC, ABETREE CHIROPRACTIC, PC,ADVANCED PHARMACY ONE INC, ANANTHAKUMAR THILLAINATHAN, MD, AZAR SASAN, MD, BARNERT SURGICAL CENTER, BROOKLYN DOC MEDICAL P.C.,CITIMEDICAL SERVICES, P.C.,COMPLETE NEUROPSYCHOLOGY, P.C.,DR. SS MATRANGOLO, D.C., EPIC PAIN MANAGEMENT & ANESTHESIA CONSULTANTS LLC,MEDPLANET INC.,NEW MILLENNIUM MEDICAL IMAGING, P.C.,PERFORMANCE CHIROPRACTIC, P.C.,SMOOTH TOUCH ACUPUNCTURE P.C.,STARLIGHT P.T. P.C.,STEVE LOSIK, MD DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for JUDGMENT-DECLARATORY Upon the foregoing documents and for the reasons stated hereinbelow, (1) the instant request by plaintiff, American Transit Insurance Company, pursuant to CPLR 3215, for a default judgment is granted in part, on the merits and on default, and denied in part, solely as moot; and (2) the instant request by plaintiff, pursuant to CPLR 3212, for summary judgment is granted on the merits and on default. Background Prior to June 5, 2019, plaintiff, American Transit Insurance Company, issued an insurance policy (number CAP 614087) to non-party D Damas and KBK Inc. On June 5, 2019, the claimantdefendant, Shaday Ross, was allegedly injured in a motor vehicle accident while she was a passenger in a vehicle that the subject insurance policy covered. The claimant-defendant, as an alleged "eligible injured person" under the subject insurance policy, submitted a claim (number 1060032-02) to plaintiff. The claimant-defendant sought treatment for injuries allegedly arising out of the subject alleged accident from the medical provider defendants, namely, A to Z Supplies Group Inc; Abetree Chiropractic, PC; Advanced Pharmacy One Inc; Ananthakumar Thillainathan, MD; Azar Sasan, MD; Bamert Surgical Center; Brooklyn Doc Medical P.C.; Citimedical Services, P.C.; Complete Neuropsychology, P.C.; Dr. SS Matrangolo, D.C.; Epic 155373/2020 AMERICAN TRANSIT INSURANCE vs. ROSS, SHADAY Motion No. 001 1 of 4 Page 1 of4 [* 2] INDEX NO. 155373/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/10/2021 Pain Management & Anesthesia Consultants LLC; Medplanet Inc.; New Millennium Medical Imaging, P.C.; Performance Chiropractic, P.C.; Smooth Touch Acupuncture P.C.; Starlight P.T. P.C.; and Steve Losik, MD. The claimant-defendant assigned her right to collect No-Fault benefits to the medical provider defendants, who, in their respective capacities as the claimantdefendant' s assignees under the subject insurance policy, submitted claims to plaintiff. On September 4 and 19, 2019, the claimant-defendant failed to appear for her scheduled and rescheduled Independent Medical Examination ("IME"), thereby breaching a condition of the subject insurance policy. Thus, plaintiff disclaimed all coverage. (NYSCEF Doc. 1.) On or about July 15, 2020, plaintiff commenced the instant action against defendants, seeking a judgment (1) declaring that the claimant-defendant breached a condition of the subject insurance policy; (2) declaring that defendants are not entitled to No-Fault coverage, first-party coverage, and /or first-party No-Fault benefits under the subject insurance policy arising out of the subject alleged accident; and (3) awarding costs and disbursements to plaintiff (NYSCEF Doc. 1, at 12). Between September 4, 2020 and January 13, 2021, plaintiff served defendants with the pleadings and CPLR 3215(g) additional notice (NYSCEF Documents 17-19). On January 28, 2021, medical provider defendant Advanced Pharmacy One, Inc. answered the instant complaint with various admissions, denials, and forty Affirmative Defenses (NYSCEF Doc. 6). Plaintiff now moves, (1), pursuant to CPLR 3215, for a default judgment as against the claimantdefendant and medical provider defendants A to Z Supplies Group Inc; Abetree Chiropractic, PC; Ananthakumar Thillainathan, MD; Azar Sasan, MD; Bamert Surgical Center; Brooklyn Doc Medical P.C.; Citimedical Services, P.C.; Complete Neuropsychology, P.C.; Dr. SS Matrangolo, D.C.; Epic Pain Management & Anesthesia Consultants LLC; Medplanet Inc.; New Millennium Medical Imaging, P.C.; Performance Chiropractic, P.C.; Smooth Touch Acupuncture P.C.; Starlight P.T. P.C.; and Steve Losik, MD; (2), pursuant to CPLR 3212, for summary judgment as against medical provider defendant Advanced Pharmacy One Inc.; (3) for a judgment declaring that the claimant-defendant is not an "eligible injured person" entitled to No-Fault benefits under the subject insurance policy; and (4) for a judgment declaring that plaintiff is not obligated to honor and/or pay any current and/or future claims, including under the Mandatory Personal Injury Protection endorsement, for reimbursement that the medical provider defendants, in their respective capacities as the claimant-defendant's assignees under the subject insurance policy, submit and/or will submit to plaintiff under the subject insurance policy, arising out of the subject alleged accident (NYSCEF Doc. 8). Pursuant to an April 22, 2021 stipulation, plaintiff discontinued the instant action with prejudice as against medical provider defendants Dr. SS Matrangolo, D.C. and Performance Chiropractic, P.C., only (NYSCEF Doc. 21). Pursuant to a May 6, 2021 stipulation, plaintiff discontinued the instant action with prejudice as against medical provider defendants Abetree Chiropractic, PC; and Ananthakumar Thillainathan, MD (NYSCEF Doc. 23). Discussion 155373/2020 AMERICAN TRANSIT INSURANCE vs. ROSS, SHADAY Motion No. 001 2 of 4 Page 2 of 4 [* 3] INDEX NO. 155373/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/10/2021 Plaintiffs CPLR 3215 Request for a Default Judgment Plaintiff has established that it is entitled to a default judgment against the claimant-defendant and medical provider defendants A to Z Supplies Group Inc; Azar Sasan, MD; Bamert Surgical Center; Brooklyn Doc Medical P.C.; Citimedical Services, P.C.; Complete Neuropsychology, P.C.; Epic Pain Management & Anesthesia Consultants LLC; Medplanet Inc.; New Millennium Medical Imaging, P.C.; Smooth Touch Acupuncture P.C.; Starlight P.T. P.C.; and Steve Losik, MD (the immediately-aforementioned medical provider defendants and the claimant-defendant, collectively, "the defaulting defendants") and is entitled to the relief that plaintiff seeks in the instant complaint by complying with CPLR 3215(f) and (g) by submitting the following, among other documents: copies of the subject summons and verified complaint (NYSCEF Doc. 16); copies of the subject affidavits of service and CPLR 3215(g) additional notice (NYSCEF Documents 17-18); and the March 17, 2021 affirmation of R. Jacob Lamar, Esq., plaintiffs attorney (NYSCEF Doc. 10). To date, the defaulting defendants have failed to answer the instant complaint and/or oppose or otherwise respond to the instant motion, and their time to do so has expired. Therefore, plaintiff is entitled to a default judgment as against the defaulting defendants. Plaintiff is not entitled to a default judgment as against medical provider defendants Abtree Chiropractic, PC; Ananthakumar Thillainathan, MD; Dr. SS Matrangolo, D.C.; and Performance Chiropractic, P.C. pursuant to the aforementioned April 22 and May 6, 2021 stipulations of discontinuance as against those medical provider defendants (NYSCEF Documents 21 and 23). Plaintiffs CPLR 3212 Request for Summary Judgment To prevail on summary judgment, the moving party must tender sufficient evidence to demonstrate the absence of any material issue of fact and entitlement to judgment in its favor as a matter oflaw. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Ayotte v Gervasio, 81 NY2d, 1062 (1993). Once the movant has met its initial burden, it then shifts to the party opposing the motion to submit evidentiary proof sufficient to create material issues of fact requiring a trial; mere conclusions and unsubstantiated allegations are insufficient. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); see generally American Sav. Bank v Imperato, 159 AD2d 444, 444 (1st Dept. 1990) ("The presentation of a shadowy semblance of an issue is insufficient to defeat summary judgment"). Plaintiff has established that that there are no material issue(s) of fact in this matter and, thus, that plaintiff is entitled to summary judgment against medical provider defendant Advanced Pharmacy One Inc. by submitting the following, among other documents: the March 12, 2021 affidavit of merit of Cheryl Glaze, a No-Fault Claims Supervisor for plaintiff (NYSCEF Doc. 11); the September 25, 2019 affidavit of Michael Russ, M.D., asserting that on September 4 and 19, 2019, the claimant-defendant failed to appear for the subject scheduled and rescheduled IME (NYSCEF Doc. 11); and the subject correspondence scheduling and rescheduling the claimantdefendant's subject IME (NYSCEF Doc. 14). To date, medical provider defendant Advanced Pharmacy One Inc. has failed to oppose or otherwise respond to the instant motion, and its time to do so has expired. 155373/2020 AMERICAN TRANSIT INSURANCE vs. ROSS, SHADAY Motion No. 001 3 of 4 Page 3 of 4 [* 4] INDEX NO. 155373/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/10/2021 Therefore, plaintiff is entitled to summary judgment against medical provider defendant Advanced Pharmacy One Inc. Conclusion Thus, for the reasons stated hereinabove, (1) the instant request by plaintiff, American Transit Insurance Company, pursuant to CPLR 3215, for a default judgment is hereby granted, on the merits and on default, as against the claimant-defendant, Shaday Ross, and medical provider defendants A to Z Supplies Group Inc; Azar Sasan, MD; Bamert Surgical Center; Brooklyn Doc Medical P.C.; Citimedical Services, P.C.; Complete Neuropsychology, P.C.; Epic Pain Management & Anesthesia Consultants LLC; Medplanet Inc.; New Millennium Medical Imaging, P.C.; Smooth Touch Acupuncture P.C.; Starlight P.T. P.C.; and Steve Losik, MD and is hereby denied, solely as moot pursuant to the aforementioned April 22 and May 6, 2021 stipulations of discontinuance (NYSCEF Documents 21 and 23), as against medical provider defendants Abetree Chiropractic, PC; Ananthakumar Thillainathan, MD; Dr. SS Matrangolo, D.C.; and Performance Chiropractic, P.C.; and (2) the instant request by plaintiff, pursuant to CPLR 3212, for summary judgment against medical provider defendant Advanced Pharmacy One Inc. is hereby granted, on the merits and on default. Accordingly, the Clerk is hereby directed to enter judgment (1) declaring that the claimantdefendant breached a condition of the subject insurance policy (number CAP 614087); (2) declaring that the defaulting defendants are not entitled to No-Fault coverage, first-party coverage, and /or first-party No-Fault benefits under the subject insurance policy arising out of the alleged June 5, 2019 accident; (3) declaring that the claimant-defendant is not an "eligible injured person" entitled to No-Fault benefits under the subject insurance policy; (4) declaring that plaintiff is not obligated to honor and/or pay any current and/or future claims, including under the Mandatory Personal Injury Protection endorsement, for reimbursement that the defaulting medical provider defendants, in their respective capacities as the claimant-defendant's assignees under the subject insurance policy, submit and/or will submit to plaintiff under the subject insurance policy, arising out of the alleged June 5, 2019 accident; and (5) awarding costs and disbursements to plaintiff. 5/10/2021 DATE CHECK ONE: ARTHUR F. ENGORON, J.S.C. CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ 155373/2020 AMERICAN TRANSIT INSURANCE vs. ROSS, SHADAY Motion No. 001 4 of 4 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page4 of 4

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