American Tr. Ins. Co. v Knight

Annotate this Case

Download PDF

American Tr. Ins. Co. v Knight 2021 NY Slip Op 32336(U) November 15, 2021 Supreme Court, New York County Docket Number: Index No. 650149/2019 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. [* 1] INDEX NO. 650149/2019 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 11/15/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES Justice ----------------------------------------------------------------- ----------------X AMERICAN TRANSIT INSURANCE COMPANY, 59 INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 650149/2019 09/22/2020 002 - V - R CURTIS KNIGHT, ADVANCED MEDICAL SUPPLIES INC, ADVANTAGE MED INNOVATIONS INC, COMPREHENSIVE MRI OF NEW YORK PC WP, DONALD C WALLERSON MD PLLC,DR GREGORI PASQUA, FIFTH AVENUE SURGERY CENTER, HEAL TH CHOICE PHARMACY INC, IGOR AMIGUD PHYSICIAN PC,LDU THERAPY INC, MONTEFIROE MEDICAL CENTER, NS RADIOLOGY PLLC,PROTECMED INC, QUINTERO PHYSICAL THERAPY PC,ROBERT MARINI, UNITED PHYSICIANS PLLC,W JOSEPH GORUM MD PC,WAL TER E MENDOZA CHIROPRACTIC PC, and JR ACUPUNCTURE PC, DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------- --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44,45,47,48,49,50,51 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) ORDER Upon the foregoing documents, it is ORDERED that the motion of plaintiff for summary judgment against defendants Advantage Innovations Inc., Fifth Avenue Surgery Center and W Joseph Gorum MD PC is DENIED; and it is further ORDERED that the court sua sponte restores this action to the pre-note of issue calenda; and it is further 650149/2019 AMERICAN TRANSIT INSURANCE vs. KNIGHT, R CURTIS Motion No. 002 1 of 4 Page 1 of4 [* 2] INDEX NO. 650149/2019 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 11/15/2021 ORDERED that defendants Advantage Innovations Inc., Fifth Avenue Surgery Center and W Joseph Gorum MD PC shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that upon such service, the Clerk shall retore this action to the pre-note of issue calendar; and it is further ORDERED preliminary that counsel discovery shall conference post on NYSCEF a order or proposed proposed competing preliminary discovery conference orders on December 15, 2021; and it is further ORDERED that any party may file the note of issue with certificate of readiness on or before February 7, 2022. DECISION The court shall deny plaintiff's motion for summary judgment. As stated by the First Department: "Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). 650149/2019 AMERICAN TRANSIT INSURANCE vs. KNIGHT, R CURTIS Motion No. 002 2 of 4 Page 2 of 4 [* 3] INDEX NO. 650149/2019 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 11/15/2021 Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage, here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff's summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR 65-3.5 [bl). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff's motion for summary judgment was properly denied." Natl. Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 8 51 (1s t Dept 2015) Similarly, here, plaintiff has failed to establish whether the subject EUOs were requested within the appropriate time frames, i.e., within thirty (30) days of the filing of the claim(s), for which coverage is being sought. Therefore, plaintiff's motion for summary judgment must be denied. 650149/2019 AMERICAN TRANSIT INSURANCE vs. KNIGHT, R CURTIS Motion No. 002 3 of 4 To the Page 3 of 4 [* 4] INDEX NO. 650149/2019 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 11/15/2021 extent that plaintiff argues that the court's prior order granting default judgment against other defendants on default determined the timeliness of plaintiff's EUOs, such an argument is misplaced. 1204(A) See Am. Tr. Ins. Co. v Romero-Richiez, 69 Misc3d (Sup Ct, NY County, Oct. 9, 2020, Lebovits, J.) . .v-~ JI - } ~ 20211115162725DJAMES969EB967CB6F4434A42693El 79CFB1E9 11/15/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA JAMES, J.S.C. ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 650149/2019 AMERICAN TRANSIT INSURANCE vs. KNIGHT, R CURTIS Motion No. 002 4 of 4 • • OTHER REFERENCE Page4 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.