Hereford Ins. Co. v 5 Borough Anesthesia, PLLC

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Hereford Ins. Co. v 5 Borough Anesthesia, PLLC 2021 NY Slip Op 32782(U) December 22, 2021 Supreme Court, New York County Docket Number: Index No. 651518/2020 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. 651518/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/22/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LAURENCE LOVE Justice ---------------------------------------------------------------------------------X HEREFORD INSURANCE COMPANY, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 63M 651518/2020 10/04/2021 001 -v5 BOROUGH ANESTHESIA, PLLC, ADAPTATION MEDICAL P.C., ALP SUPPLY INC, AMILOR ACUPUNCTURE P.C., ANCIENT & MODERN ACUPUNCTURE P.C. A/K/A ANCIENT AND MODERN ACUPUNCTURE PC,BLISS DRUGS INC.,CARESOFT LEASING CORP, CENTRAL DRUGS INC.,CUSTOM RX PHARMACY LLC,DEMETRIOS KARAKIZIS D.C., P.C.,ECLIPSE MEDICAL IMAGING P.C.,GRAIG GRANOVSKY CHIROPRACTIC P.C.,HMP ORTHOPAEDICS, P.C.,INTEGRATED SPECIALTY ASC LLC,LONGEVITY MEDICAL SUPPLY, INC.,MAXIM ORTHOPAEDICS PLLC,NEW ENGLAND CHIROPRACTIC, P.C.,NEW MILLENNIUM MEDICAL IMAGING, P.C.,NYC CARE PT, P.C.,PREMIER ANESTHESIA ASSOCIATES PC,QR MEDICAL SERVICES, P.C.,SP ONE SERVICES, INC.,STERNBERG CHIROPRACTIC, P.C.,WALLEGOOD INC.,WJ WELLNESS ACUPUNCTURE, P.C.,WS PSYCHOLOGICAL, P.C.,CLARENCE BROWN, RICHARD FLOWERS DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 were read on this motion to/for JUDGMENT - DEFAULT . Upon the foregoing documents, plaintiff’s motion seeking to enter a default judgment against the non-answering defendants is decided as follows: Plaintiff commenced the instant action by filing a summons and complaint on March 6, 2020. As described in the complaint, on September 23, 2019, defendants Clarence Brown and Richard Flowers were passengers in a Hereford-insured livery vehicle, driven by Maria Pichardo, which was involved in an accident. Said claimants allegedly sustained injuries and sought 651518/2020 HEREFORD INSURANCE COMPANY vs. 5 BOROUGH ANESTHESIA, PLLC ET AL Motion No. 001 1 of 5 Page 1 of 5 [* 2] INDEX NO. 651518/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/22/2021 treatment from the defendant medical providers. Plaintiff seeks a declaratory judgment that it is not obligated to pay no-fault claims arising out of said accident based upon Clarence Brown’s failure to appear at an Examination Under Oath and Richard Flowers’ testimony at his Examination Under Oath, leading to a founded belief that Brown and Flowers’ alleged injuries did not arise from the subject accident or that same made material misrepresentations concerning the accident to plaintiff. On March 10, 2020, Richard Flowers was served pursuant to CPLR 308(2). The corporate defendant movants were served pursuant to BCL Section 306 or LLC Law Section 303 except for Integrated Specialty, ASC, LLC and Premier Anesthesia Associates, PC who were served through their managing agents. On August 31, 2021, the defaulting defendants were served with an additional copy of the summons and complaint pursuant to CPLR 3215(g). Plaintiff now moves for a default judgment. After filing, plaintiff’s motion was withdrawn as to defendants, Graig Granovsky Chiropractic, Pc., Longevity Medical Supply, Inc. and answers have been filed by Custom RX Pharmacy, LLC, Adaptation Medical, PC, Sternberg Chiropractic, PC, and Caresoft Leasing Corp. Plaintiff moves to enter a default judgment against 5 Borough Anesthesia, PLLC, ALP Supply, Inc., Amilor Acupuncture, PC, Ancient & Modern Acupuncture, PC, Bliss Drugs, Inc., Central Drugs, Inc., Demetrios Karakizis, DC, PC, Eclipse Medical Imaging, PC, HMP Orthopaedics, PC, Integrated Specialty ASC, LLC, Maxim Orthopaedics, PLLC, New England Chiropractic, PC, New Millennium Medical Imaging, PC, NYC Care PT, PC, Premier Anesthesia Associates, PC, QR Medical Services, PC, SP One Services, Inc., Sternberg Chiropractic, PC, Wallegood, Inc. WJ Wellness Acupuncture, PC, WS Psychological, PC and Richard Flowers (the “Defaulting Defendants”). In support of plaintiff’s motion, plaintiff submits the affidavit of Joronda McBurnie, a Senior No-Fault adjuster employed by plaintiff, the police report, and the transcript of Richard 651518/2020 HEREFORD INSURANCE COMPANY vs. 5 BOROUGH ANESTHESIA, PLLC ET AL Motion No. 001 2 of 5 Page 2 of 5 [* 3] INDEX NO. 651518/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/22/2021 Flowers’ EUO, which establish as follows: On September 23, 2019, Flowers and Brown were passengers in a Hereford-insured livery vehicle being driven by Maria Pichardo (“Pichardo”) when it was allegedly involved in a motor vehicle collision at the intersection of North Conduit Avenue and Cross Bay Boulevard in Queens, New York. Claimants later alleged to have sustained significant bodily injuries as a result of the collision, and Hereford assigned claim number 86844 to all No-Fault claims relating to the September 23, 2019 collision. The circumstances surrounding the collision raised a strong possibility that the Claimants’ alleged injuries and any subsequent treatment by the Medical Provider Defendants were not causally related to the accident. Brown failed to appear for an EUO and Flowers gave suspect answers at his EUO. Based upon same, Hereford maintains a founded belief that the Claimants’ alleged injuries and any subsequent NoFault treatment submitted by the Medical Provider Defendants were not causally related to the September 23, 2019 collision and/or did not arise from an insured event. An insurer may disclaim coverage based upon “the fact or founded belief that the alleged injury does not arise out of an insured incident.” Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 N.Y.2d 195, 199 (1997). In meeting its burden, an insurer is “not required to establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including scienter, by clear and convincing evidence.” V.S. Med. Services, P.C. v. Allstate Ins. Co., 25 Misc. 3d 39, 39 (N.Y. App. Term, 2d Dep’t 2009). Rather, the insurer must put forth facts that suggest it maintains a founded belief that the injuries or treatments are unrelated to the collision. Plaintiff has done so here. ORDERED that Richard Flowers is not an eligible injured person entitled to no-fault benefits under Hereford insurance policy CA241951, Claim No.: 86844; and it is further 651518/2020 HEREFORD INSURANCE COMPANY vs. 5 BOROUGH ANESTHESIA, PLLC ET AL Motion No. 001 3 of 5 Page 3 of 5 [* 4] INDEX NO. 651518/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/22/2021 ORDERED that Hereford Insurance Company is not obligated to honor or pay claims for reimbursement submitted by the defaulting medical providers (5 Borough Anesthesia, PLLC, ALP Supply, Inc., Amilor Acupuncture, PC, Ancient & Modern Acupuncture, PC, Bliss Drugs, Inc., Central Drugs, Inc., Demetrios Karakizis, DC, PC, Eclipse Medical Imaging, PC, HMP Orthopaedics, PC, Integrated Specialty ASC, LLC, Maxim Orthopaedics, PLLC, New England Chiropractic, PC, New Millennium Medical Imaging, PC, NYC Care PT, PC, Premier Anesthesia Associates, PC, QR Medical Services, PC, SP One Services, Inc., Sternberg Chiropractic, PC, Wallegood, Inc. WJ Wellness Acupuncture, PC, WS Psychological, PC), as assignees of Richard Flowers, under Hereford insurance policy CA241951, Claim No.: 86844, nor is Hereford Insurance Company required to provide, pay, honor or reimburse any claims set forth herein, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits filed by 5 Borough Anesthesia, PLLC, ALP Supply, Inc., Amilor Acupuncture, PC, Ancient & Modern Acupuncture, PC, Bliss Drugs, Inc., Central Drugs, Inc., Demetrios Karakizis, DC, PC, Eclipse Medical Imaging, PC, HMP Orthopaedics, PC, Integrated Specialty ASC, LLC, Maxim Orthopaedics, PLLC, New England Chiropractic, PC, New Millennium Medical Imaging, PC, NYC Care PT, PC, Premier Anesthesia Associates, PC, QR Medical Services, PC, SP One Services, Inc., Sternberg Chiropractic, PC, Wallegood, Inc. WJ Wellness Acupuncture, PC, WS Psychological, PC from the alleged accident of September 23, 2019, involving Flowers as same is not an eligible injured person as defined by the Policy and/or New York State Regulation 68; and it is further ORDERED that ATIC is not required to provide, pay, or honor any current or future claim for no-fault benefits submitted by the defaulting medical providers under the Mandatory Personal Injury Protection endorsement under Hereford insurance policy CA241951, Claim No.: 86844, nor 651518/2020 HEREFORD INSURANCE COMPANY vs. 5 BOROUGH ANESTHESIA, PLLC ET AL Motion No. 001 4 of 5 Page 4 of 5 [* 5] INDEX NO. 651518/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/22/2021 is Hereford required to provide, pay, honor or reimburse any claims set forth herein, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under Hereford insurance policy CA241951, Claim No.: 86844 from the alleged accident of September 23, 2019, involving Flowers as Flowers is not an eligible injured person as defined by the Policy and/or New York State Regulation 68. 12/22/2021 DATE $SIG$ LAURENCE LOVE, J.S.C. CHECK ONE: CASE DISPOSED X GRANTED ~ X • DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 651518/2020 HEREFORD INSURANCE COMPANY vs. 5 BOROUGH ANESTHESIA, PLLC ET AL Motion No. 001 5 of 5 • • OTHER REFERENCE Page 5 of 5

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