Country-Wide Ins. Co. v Velez

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Country-Wide Ins. Co. v Velez 2021 NY Slip Op 32343(U) November 15, 2021 Supreme Court, New York County Docket Number: Index No. 652568/2021 Judge: Laurence L. Love 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. 652568/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/16/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LAURENCE LOVE Justice ---------------------------------------------------------------------------------X COUNTRY-WIDE INSURANCE COMPANY, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 63M 652568/2021 10/05/2021 001 -vMICHAEL VELEZ, LONG ISLAND JEWISH MEDICAL CENTER, HILLSIDE FAMILY CHIROPRACTIC, P.C.,NORTH SHORE LIJ MEDICAL, P.C.,GARA MEDICAL CARE, P.C.,ATLAS RADIOLOGY, P.C.,SANFORD CHIROPRACTIC, P.C.,SKY LINE PHYSICAL THERAPY, P.C.,DOS MANOS CHIROPRACTIC, P.C.,UNION DME CORP., AFFINITY RX, WELLNESS PHYSICAL THERAPY REHABILITATION, PLLC,ACU NEEDLE ACUPUNCTURE, P.C.,CROSSTOWN CHIROPRACTIC, P.C.,JA PHYSICAL THERAPY, P.C. DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for JUDGMENT - DEFAULT . Upon the foregoing documents, it is This case arises from an alleged automobile accident on May 13, 2019 where defendant Ming Jun Fu was in a vehicle insured by plaintiff, Country-Wide Insurance Company (“CountryWide”). Defendant made a claim (claim number 000344672-001) to plaintiff as a purported injured person under an insurance policy issued by plaintiff (RS 8159606 18). Plaintiff filed affidavits of service of the summons and complaint upon named defendants on April 26, 2021 (see NYSCEF Doc. Nos. 2 – 4, 6 – 15, 17). The complaint seeks a declaratory judgment against MICHAEL VELEZ, LONG ISLAND JEWISH MEDICAL CENTER, HILLSIDE FAMILY CHIROPRACTIC PC, NORTH SHORE LIJ MEDICAL PC, GARA MEDICAL CARE PC, ATLAS RADIOLOGY PC, SANFORD CHIROPRACTIC PC, SKY 652568/2021 COUNTRY-WIDE INSURANCE COMPANY vs. VELEZ, MICHAEL ET AL Motion No. 001 1 of 4 Page 1 of 4 [* 2] INDEX NO. 652568/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/16/2021 LINE PHYSICAL THERAPY PC, DOS MANOS CHIROPRACTIC PC, UNION DME CORP, AFFINITY RX, WELLNESS PHYSICAL THERAPY REHABILITATION PLLC, ACU NEEDLE ACUPUNCTURE PC, CROSSTOWN CHIROPRACTIC PC, and JA PHYSICAL THERAPY PC that Michael Velez is not an eligible injured person entitled to no-fault benefits under the insurance policy, and that plaintiff is not obligated to reimburse Michael Velez for alleged medical treatment, therapy and/or medical supplies rendered. Plaintiff alleges Michael Velez breached the policy in failing to appear for a properly requested and scheduled Independent Medical Examination (“IME”). Plaintiff now moves for a default judgment, CPLR 3215 against MICHAEL VELEZ, LONG ISLAND JEWISH MEDICAL CENTER, HILLSIDE FAMILY CHIROPRACTIC PC, NORTH SHORE LIJ MEDICAL PC, GARA MEDICAL CARE PC, ATLAS RADIOLOGY PC, SANFORD CHIROPRACTIC PC, SKY LINE PHYSICAL THERAPY PC, DOS MANOS CHIROPRACTIC PC, UNION DME CORP, AFFINITY RX, WELLNESS PHYSICAL THERAPY REHABILITATION PLLC, ACU NEEDLE ACUPUNCTURE PC, CROSSTOWN CHIROPRACTIC PC, and JA PHYSICAL THERAPY PC. An affidavit of service for additional notice, per CPLR 3215(g) has been submitted for all defendants except MICHAEL VELEZ (see NYSCEF Doc. No. 18 P. 23). An affidavit of service of the notice of motion for all defendants has been provided (see NYSCEF Doc. No. 38 P. 1). Defendants have not appeared nor submitted opposition to the instant motion. An insurer may request that an eligible injured party appear for an IME to verify the nofault claim and deny no-fault benefits if the eligible injured party fails to appear. Compliance with an IME request is a condition precedent for no-fault coverage (see 11 NYCRR 65-1.1, 653.5(e)). 652568/2021 COUNTRY-WIDE INSURANCE COMPANY vs. VELEZ, MICHAEL ET AL Motion No. 001 2 of 4 Page 2 of 4 [* 3] INDEX NO. 652568/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/16/2021 The affidavit of Kyaw Nyein, no-fault claim supervisor for Country-Wide affirms, “[p]laintiff requested that the eligible injured party submit to two (2) scheduled IME’s, to which the eligible injured party failed to appear. Plaintiff requested that the eligible injured party appear for the IME on August 15, 2019. On August 15, 2019, however, the eligible injured party failed to appear for the IME. A final notice for the IME was sent to the eligible injured party’s attorney and the eligible injured party, scheduling the IME for October 03, 2019. On October 03, 2019, the eligible injured party failed to appear for the second time” (see NYSCEF Doc. No. 30 Par. 10). A violation of a condition precedent of not appearing for IME’s absolves the insurance company’s obligation from paying any amount in dispute that may have arisen under the contract (see Dyno-Bite, 80 A.D.2d 471 [2d Dep’t 2006]). Wherefore, it is hereby, ORDERED that plaintiff’s motion for a default judgment, CPLR 3215, against MICHAEL VELEZ is DENIED for non-compliance of the additional notice requirement of CPLR 3215(g); and it is further ORDERED that plaintiff’s motion for a default judgment against LONG ISLAND JEWISH MEDICAL CENTER, HILLSIDE FAMILY CHIROPRACTIC PC, NORTH SHORE LIJ MEDICAL PC, GARA MEDICAL CARE PC, ATLAS RADIOLOGY PC, SANFORD CHIROPRACTIC PC, SKY LINE PHYSICAL THERAPY PC, DOS MANOS CHIROPRACTIC PC, UNION DME CORP, AFFINITY RX, WELLNESS PHYSICAL THERAPY REHABILITATION PLLC, ACU NEEDLE ACUPUNCTURE PC, CROSSTOWN CHIROPRACTIC PC, and JA PHYSICAL THERAPY PC is GRANTED; and it is further 652568/2021 COUNTRY-WIDE INSURANCE COMPANY vs. VELEZ, MICHAEL ET AL Motion No. 001 3 of 4 Page 3 of 4 [* 4] INDEX NO. 652568/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/16/2021 ORDERED and ADJUDGED that on the first cause of action, plaintiff owes no duty to defendants LONG ISLAND JEWISH MEDICAL CENTER, HILLSIDE FAMILY CHIROPRACTIC PC, NORTH SHORE LIJ MEDICAL PC, GARA MEDICAL CARE PC, ATLAS RADIOLOGY PC, SANFORD CHIROPRACTIC PC, SKY LINE PHYSICAL THERAPY PC, DOS MANOS CHIROPRACTIC PC, UNION DME CORP, AFFINITY RX, WELLNESS PHYSICAL THERAPY REHABILITATION PLLC, ACU NEEDLE ACUPUNCTURE PC, CROSSTOWN CHIROPRACTIC PC, and JA PHYSICAL THERAPY PC to pay no-fault claims submitted in relation to the May 13, 2019 loss, claim no.: 000344672001, and policy no. RS 8159606 18, referenced in the complaint; and it is further ORDERED and ADJUDGED that on the second cause of action that all arbitrations, lawsuits and enforcement of award or judgments in connection with the May 13, 2019 loss, claim no.: 000344672/001, and policy no. RS 8159606, referenced in the complaint are hereby permanently STAYED. 11/15/2021 DATE CHECK ONE: $SIG$ LAURENCE LOVE, J.S.C. CASE DISPOSED GRANTED • DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ X NON-FINAL DISPOSITION X GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 652568/2021 COUNTRY-WIDE INSURANCE COMPANY vs. VELEZ, MICHAEL ET AL Motion No. 001 4 of 4 • • OTHER REFERENCE Page 4 of 4

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