State Farm Fire & Cas. Co. v Advanced Recovery Equip. & Supplies, LLC

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State Farm Fire & Cas. Co. v Advanced Recovery Equip. & Supplies, LLC 2022 NY Slip Op 32896(U) August 25, 2022 Supreme Court, New York County Docket Number: Index No. 158584/2021 Judge: Dakota D. Ramseur 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. INDEX NO. 158584/2021 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:40 PM NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 08/25/2022 SUPREME COURT OF THE STATE OF NEW YORK · NEW YORK COUNTY PRESENT: HON. DAKOTA D. RAMSEUR PART 34M Justice · _________________,_ _ _ _ _ __ . ; _ _ ~ - - - - - - - X INDEX NO. STATE FARM FIRE AND CASUALTY COMPANY ' ' ' Plaintiff, MOTION DATE 158584/2021 06/15/2022 MOTION SEQ. NO. _ ___:0:. .: 0c.. :. 1_ _ - V - ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AN PHYSICIAN ASSISTANT, P.C .,ANCHOR RX PHARMACY, INC.,BL PAIN MANAGEMENT, , PLLC,CREATiVE ACUPUNCTURE, P.C.,CVAP MEDICAL, P.C.,D & S PHARMACY, LLC,VINCENT S. DOWLING, M.D., EAST COAST MED GROUP, INC.,EXACT ORTHOMED, INC.,EXPERT PHARMACY, INC.,FLORAL: MED SUPPLY, INC.,FLORAL PARK DRUGS, INC.,FRANK ZHAN BEST PHYSICAL THERAPY, P.C.,GAMMA PHYSICAL THERAPY, PLLC,GOOD MEDICA, INC.,HANK ROSS MEDICAL, P.C., HEAL IT MEDICAL SUPPLY, INC:, IDEAL CARE PHARMACY, INC.,ISLAND AMBULATORY SURGERY CENTER, L.L.C., JR MEIDICAL, P.C.,KORGE PRODUCTS CORP., LENCO DIAGNOSTIC LABORATORY, INC.,MARK L RITCH D.O., P.A. , METRO CHEMISTS PHARMACY, INC.,MJG MEDICAL SERVICES, P.C.,NEW AGE MEDICAL P.C.,NYEEQASC, LLC,OLD STAR, INC.,PEDRO TORRES-JIMENEZ MD, P.C.,PRECISE MEDICAL SOLUTIONS, LLC,QS MEDICAL SERVICES, , P.C.,QUALITY CARE RX, INC.,RIGHT CHOICE SUPPLY, INC.,ROCKAWAYS ASCDEVELOPMENT, LLC NK/AASC, OF ROCKAWAY BEACH, SEDATION VACATION PERIOPERATIVE MEDICINE, PLLC,SKY RADIOLOGY, P.C.,SURGIMED CARE, INC., TMVQS CORP. D/B/A TRINITY PHARMACY, WILLIAM L. KING, M.D., P.C.,WILSON PRIMARY MEDICAL CARE, P.C.,ZAKARIA MEDICAL SERVICE, P.C.,DWAYNE MACFARLANE, AKl,M PLUMMER, ROLANDO ROBERTS, KENEISHA S. KERRPALMER . ORDER _-AMENDED (MOTION RELATED) Defendant. ,~------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 101, 102, 103, 104, 105,106,107, 108,109,110,111 , 112,113,114, 115,116,117,118,119,120,121 , 122,123,125,126, 127 . JUDGMENT - DEFAULT were read on this motion to/for Plaintiff, STATE FARM FIRE AND CASUALTY COMPANY {plaintiff), commenced this action seeking, among other things, a declaration that it does not owe a duty to pay for NoFault benefits arising out of an alleged February 20, 2021 motor vehicle accident involving 158584/2021 STATE FARM FIRE AND CASUALTY COMPANY vs. ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC ET AL Motion No. 001 [* 1] 1 of 6 ·Page 1 of 6 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:40 PM NYSCEF DOC. NO. 128 INDEX NO. 158584/2021 RECEIVED NYSCEF: 08/25/2022 claimants/co-defendants, DWAYNE MACFARLANE (Macfarlane), AKIM PLUMMER (Plummer) ROLANDO ROBERTS (Roberts), and KENEISHA S. KERR-PALMER (collectively, the Claimants). Plaintiff now moves: 1) pursuant to CPLR 3215 for a default judgment against the non-appearing co-defendants, ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AN PHYSICIAN ASSISTANT, P.C.,ANCHOR RX PHARMACY, INC.,BL PAIN MANAGEMENT, PLLC,CREATIVE ACUPUNCTURE, P.C., CVAP MEDICAL, P.C., D & S PHARMACY, LLC,VINCENT S. DOWLING, M.D., EAST COAST MED GROUP, INC., EXACT ORTHOMED, INC., EXPERT PHARMACY, INC., FLORAL PARK DRUGS, INC., FRANK ZHAN BEST PHYSICAL THERAPY, P.C., GAMMA PHYSICAL THERAPY, PLLC,GOOD MEDICA, INC., HANK ROSS MEDICAL, P.C., HEAL IT MEDICAL SUPPLY, INC., ISLAND AMBULATORY SURGERY CENTER, L.L.C., JR MEIDICAL, P.C.,KORGE PRODUCTS CORP., LENCO DIAGNOSTIC LABORATORY, INC., METRO CHEMISTS PHARMACY, INC.,MJG MEDICAL SERVICES, P.C., NEW AGE MEDICAL P.C.,NYEEQASC, LLC, OLD STAR, INC., PEDRO TORRES-JIMENEZ MD, P.C., QS MEDICAL SERVICES, P.C., QUALITY CARE RX, INC., RIGHT CHOICE SUPPLY, INC., ROCKAWAYS ASC DEVELOPMENT, LLC A/KIA ASC OF ROCKAWAY BEACH, SEDATION VACATION PERI OPERATIVE MEDICINE, PLLC, SKY RADIOLOGY, P.C., SURGIMED CARE, INC., WILLIAM L. KING, M.D., P.C., WILSON PRIMARY MEDICAL CARE, P.C., ZAKARIA MEDICAL SERVICE, P.C., DWAYNE MACFARLANE, and AKIM PLUMMER 1 (collectively, the defaulting defendants); 2) a declaration that plaintiff is not obligated to honor or pay claims for reimbursement arising under auto policy claim number 32-16V6-55M; 3) to stay all proceedings for the underlying accident involving plaintiff and the aforesaid defaulting defendants; and 4) for leave pursuant to CPLR 3025(b) to amend the complaint to add EXPRESS RECOVERY, INC. and LSL MOBILE, INC. as additional defendants. The motion is unopposed. For the.following reasons, plaintiffs motion is granted. CPLR 3215(£) requires a movant seeking default judgment to submit the following proofs: (1) proof of service of the summons and complaint or summons with notice; (2) an affidavit of the facts constituting the claim; and (3) an affidavit showing the default in answering or appearing. Here, plaintiff demonstrates its entitlement to a default judgment pursuant to CPLR 3215, as plaintiff served the summons and compliant upon the defaulting defendants, that the defaulting defendants failed to answer, and as discussed below, the meritorious nature of plaintiffs claims. A No-Fault insurer "[m]ay assert a lack of coverage defense premised on 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. Cos., 90 NY2d 195, 199 [1997]). A No-Fault insurer is "[n]ot required to establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including sci enter ... , by clear and convincing evidence" ( VS. Med Sews .. P.C. v Allstate Ins. Co., 25 Misc3d 39 [App Term, 2d Dept 2009, 2nd, 11th & 13th Jud Dists]). "Circumstantial evidence is sufficient if a defendant's conduct may be 'reasonably inferred' based upon 'logical inferences to be drawn from the evidence' "(Benzaken v Verizon Pursuant to the June 7, 2022 stipulation of partial withdrawal, plaintiff withdraws the motion against EXACT ORTHOMED, INC. and GOOD MEDICA, INC. 1 158584/2021 STATE FARM FIRE AND CASUALTY COMPANY vs. ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC ET AL Motion No. 001 [* 2] 2 of 6 Page 2 of6 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:40 PM NYSCEF DOC. NO. 128 INDEX NO. 158584/2021 RECEIVED NYSCEF: 08/25/2022 Commc'ns. Inc., 21 AD3d 864, 865 [2d Dept 2005], quoting Staples v Sisson, 274 AD2d 779 [3d Dept 2000]). By way of background, the Claimants alleged that they were injured in a February 20, 2021 motor vehicle accident while occupants of a 2004 Nissan Quest, a vehicle insured by plaintiff in the name of Palmer and operated by Palmer (the insured vehicle). According to the record, the alleged motor vehicle accident occurred when the insured vehicle was hit on its rear and passenger side by a commercial truck Freightliner tractor-trailer operated by non-party Winston Danvers (Danvers) at the intersection of North Conduit and Cohancy Street, Queens, New York. According to plaintiffs investigation of the claim, Danvers indicates that he saw the insured vehicle driving slowly on the side of the road with its flashers on prior to the loss. The insured vehicle then pulled up to the side of Danvers vehicle at a stoplight. Danvers states that when the light turned green, the insured vehicle attempted to cause an accident by pulling in front of his truck and stopping, so that he would drive into it. Danvers indicates that as the insured vehicle drove in front of Danvers' vehicle, Danvers observed a male sitting in the front passenger seat who was gesturing and pointing in front of Danvers' vehicle. Danvers indicates that the insured vehicle partially drove in front of my truck and stopped. According to Danvers, he did not move his vehicle, that his vehicle did not make contact with the insured vehicle, and that the front passenger side of the insured vehicle was only slightly in the path of Danvers' vehicle. Plaintiff also conducted a "Lange" Collision Damage Analysis Report, wherein an examiner performed a physical inspection of the insured vehicle. Plaintiffs Lange report concluded that none of the damage presented on the insured vehicle was the result of a collision event with Danvers' vehicle. Plaintiffs Lange report noted that the damage was clearly preexisting and contained rust, which could not have occurred between the time of the alleged collision and the time of the photographs. The insurance carrier for the vehicle operated by Danvers also conduced a Lange analysis report, revealing that the damage in the forward area of the sliding door and rear edge of the forward door of the insured vehicle included rust and deterioration inconsistent with the collision event allegedly occurring minutes before the photographs were taken. The insurance carriers' report concluded that "the damage present on the passenger side of the [insured vehicle] is not the result of collision forces applied by the Freightliner tractor-trailer during a collision caused or otherwise initiated by the Freightliner" (NYSCEF doc. no. 109). Moreover, the EUO testimonies of Palmer, Macfarlane, Plummer and Roberts contained notable inconsistencies, including the reason for the Claimants being in the insured vehicle at the time, Roberts' reason for adjourning his EUO, that Roberts' account of the incident at his EUO was scripted, the parties testimony concerning documentation of the alleged accident, and the parties testimony concerning the events immediately after leaving the scene of the accident, including the order of which parties were dropped off and where they were dropped off. Further, despite claiming significant injuries, the Claimants did not go to a hospital for their injuries. Moreover, as part of plaintiffs investigation, plaintiff discovered MacFarlane's history of prior [* 3] 158584/2021 STATE FARM FIRE AND CASUALTY COMPANY vs. ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC ET AL 3 of 6 Motion No. 001 Page 3 of 6 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:40 PM NYSCEF DOC. NO. 128 INDEX NO. 158584/2021 RECEIVED NYSCEF: 08/25/2022 losses, including losses on March 14, 2020, July 11, 2019, January 6, 2019, March 21, 2018 and December 5, 2016. In light of the above, it can be reasonably inferred from the evidence that plaintiff had a founded belief that the injuries claimed were not causally related to the February 20, 2021 incident and/or did not arise from the accident. A motion to amend the complaint should be freely granted unless the proposed amendment is palpably insufficient to state a cause of action, patently devoid of merit (Bishop v Maurer, 83 AD3d 483 [1st Dept 2011 ]). Here, plaintiff establishes that it received medical bills seeking No-Fault reimbursement from EXPRESS RECOVERY, INC. and LSL MOBILE, INC. for medical services allegedly provided to the Claimants. Thus, there is no opposition to the motion, and thus, no showing of prejudice to the nonmoving parties, the branch of plaintiffs motion for leave to amend the complaint is granted. Accordingly, it is hereby ORDERED that plaintiff STATE FARM FIRE AND CASUAL TY COMPANY' s motion for default judgment as against defendants ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AN PHYSICIAN ASSISTANT, P.C.,ANCHOR RX PHARMACY, INC.,BL PAIN MANAGEMENT, PLLC,CREATIVE ACUPUNCTURE, P.C.,CVAP MEDICAL, P.C.,D & S PHARMACY, LLC,VINCENT S. DOWLING, M.D., EAST COAST MED GROUP, INC.,,EXPERT PHARMACY, INC., FLORAL PARK DRUGS, INC.,FRANK ZHAN BEST PHYSICAL THERAPY, P.C.,GAMMA PHYSICAL THERAPY, PLLC, HANK ROSS MEDICAL, P.C.,HEAL IT MEDICAL SUPPLY, INC., ISLAND AMBULATORY SURGERY CENTER, L.L.C., JR MEIDICAL, P.C.,KORGE PRODUCTS CORP., LENCO DIAGNOSTIC LABORATORY, INC., METRO CHEMISTS PHARMACY, INC.,MJG MEDICAL SERVICES, P.C.,NEW AGE MEDICAL P.C.,NYEEQASC, LLC,OLD STAR, INC.,PEDRO TORRES-JIMENEZ MD, P.C., QS MEDICAL SERVICES, P.C.,QUALITY CARE RX, INC.,RIGHT CHOICE SUPPLY, INC.,ROCKA WAYS ASC DEVELOPMENT, LLC A/KIA ASC OF ROCKAWAY BEACH, SEDATION VACATION PERI OPERATIVE MEDICINE, PLLC,SKY RADIOLOGY, P.C.,SURGIMED CARE, INC., WILLIAM L. KING, M.D., P.C.,WILSON PRIMARY MEDICAL CARE, P.C ..,ZAKARIA MEDICAL SERVICE, P.C.,DWA YNE MACFARLANE, and AKIM PLUMMER is granted; and it is further ORDERED, ADJUDGED and DECLARED that plaintiff STA TE FARM FIRE AND CASUAL TY COMPANY, or any of its affiliates or subsidiaries, has no duty to pay any NoFault benefits, in the form of sums, monies, damage, awards, or benefits to ADV AN CED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AN PHYSICIAN ASSISTANT, P.C.,ANCHOR RX PHARMACY, INC.,BL PAIN MANAGEMENT, PLLC,CREATIVE ACUPUNCTURE, P.C.,CVAP MEDICAL, P.C.,D & S PHARMACY, LLC,VINCENT S. DOWLING, M.D., EAST COAST MED GROUP, INC., EXPERT PHARMACY, INC., FLORAL PARK DRUGS, INC.,FRANK ZHAN BEST PHYSICAL THERAPY, P.C.,GAMMA PHYSICAL THERAPY, PLLC, HANK ROSS MEDICAL, P.C.,HEAL IT MEDICAL SUPPLY, INC., ISLAND AMBULATORY SURGERY CENTER, L.L.C., JR MEIDICAL, P.C.,KORGE PRODUCTS CORP., LENCO DIAGNOSTIC LABORATORY, INC., METRO 158584/2021 STATE FARM FIRE AND CASUALTY COMPANY vs. ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC ET AL Motion No. 001 [* 4] 4 of 6 Page 4 of 6 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:40 PM NYSCEF DOC. NO. 128 INDEX NO. 158584/2021 RECEIVED NYSCEF: 08/25/2022 CHEMISTS PHARMACY, INC.,MJG MEDICAL SERVICES, P.C.,NEW AGE MEDICAL P.C.,NYEEQASC, LLC,OLD STAR, INC.,PEDRO TORRES-JIMEN EZ MD, P.C., QS MEDICAL SERVICES, P.C.,QUALITY CARE RX, INC.,RIGHT CHOICE SUPPLY, INC.,ROCKA WAYS ASC DEVELOPMENT , LLC A/KIA ASC OF ROCK.A WAY BEACH, SEDATION VACATION PERIOPERATIV E MEDICINE, PLLC,SKY RADIOLOGY, P.C.,SURGIMED CARE, INC., WILLIAM L. KING, M.D., P.C.,WILSON PRIMARY MEDICAL CARE, P.C.,ZAKARIA MEDICAL SERVICE, P.C.,DWA YNE MACFARLANE, and AKIM PLUMMER is granted; and it is further ADJUDGED and DECLARED that all actions, proceedings or arbitrations arising from injuries alleged to have been sustained by the claimants as a result of the alleged February 20, 2021, accident arising under auto policy claim number 32-16V6-55M are stayed, and that the defaulting defendants ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AN PHYSICIAN ASSISTANT, P.C.,ANCHOR RX PHARMACY, INC.,BL PAIN MANAGEMENT, PLLC,CREATIVE ACUPUNCTURE , P.C.,CVAP MEDICAL, P.C.,D & S PHARMACY, LLC,VINCENT S. DOWLING, M.D., EAST COAST MED GROUP, INC. ,EXPERT PHARMACY, INC., FLORAL PARK DRUGS, INC.,FRANK ZHAN BEST PHYSICAL THERAPY, P.C.,GAMMA PHYSICAL THERAPY, PLLC, HANK ROSS MEDICAL, P.C.,HEAL IT MEDICAL SUPPLY, INC., ISLAND AMBULATORY SURGERY CENTER, L.L.C., JR MEIDICAL, P.C.,KORGE PRODUCTS CORP., LENCO DIAGNOSTIC LABORATORY, INC., METRO CHEMISTS PHARMACY, INC.,MJG MEDICAL SERVICES, P.C.,NEW AGE MEDICAL P.C.,NYEEQASC, LLC,OLD STAR, INC.,PEDRO TORRES-JIMENEZ MD, P.C., QS MEDICAL SERVICES, P.C.,QUALITY CARE RX, INC.,RIGHT CHOICE SUPPLY, INC.,ROCKA WAYS ASC DEVELOPMENT , LLC A/K/A ASC OF ROCK.AWA Y BEACH, SEDATION V A_CATION PERI OPERATIVE MEDICINE, PLLC,SKY RADIOLOGY, P.C.,SURGIMED CARE, INC., WILLIAM L. KING, M.D., P.C.,WILSON PRIMARY MEDICAL CARE, P.C.,ZAKARIA MEDICAL SERVICE, P.C.,DWA YNE MACFARLANE, and AKIM PLUMMER, and are enjoined from commencing any such further actions, proceedings or arbitrations; and it is further ORDERED that the Clerk is directed to enter default judgment in favor of plaintiff STATE FARM FIRE AND CASUALTY COMPANY as against the defaulting defendants ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AN PHYSICIAN ASSISTANT, P.C.,ANCHOR RX PHARMACY, INC.,BL PAIN MANAGEMENT , PLLC,CREATIVE ACUPUNCTURE , P.C.,CVAP MEDICAL, P.C.,D & S PHARMACY, LLC,VINCENT S. DOWLING, M.D., EAST COAST MED GROUP, INC .. ,EXPERT PHARMACY, INC., FLORAL PARK DRUGS, INC.,FRANK ZHAN BEST PHYSICAL THERAPY, P.C.,GAMMA PHYSICAL THERAPY, PLLC, HANK ROSS MEDICAL, P.C.,HEAL IT MEDICAL SUPPLY, INC., ISLAND AMBULATORY SURGERY CENTER, L.L.C., JR MEIDICAL, P.C.,KORGE PRODUCTS CORP., LENCO DIAGNOSTIC LABORATORY, INC., METRO CHEMISTS PHARMACY, INC.,MJG MEDICAL SERVICES, P.C.,NEW AGE MEDICAL P.C.,NYEEQASC, LLC,OLD STAR, INC.,PEDRO TORRES-JIMENEZ MD, P.C., QS MEDICAL SERVICES, P.C.,QUALITY CARE RX, INC.,RIGHT CHOICE SUPPLY, INC.,ROCKA WAYS ASC DEVELOPMENT , LLC A/KIA ASC OF ROCK.AWA Y BEACH, SEDATION VACATION PERI OPERATIVE MEDICINE, PLLC,SKY RADIOLOGY, P.C.,SURGIMED CARE, INC., WILLIAM L. KING, M.D., [* 5] 158584/2021 STATE FARM FIRE AND CASUALTY COMPANY vs. ADVANCED RECOVERY 5 of 6 EQUIPMENT AND SUPPLIES, LLC ET AL Motinn Nn n Page 5 of 6 INDEX NO. 158584/2021 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:40 PM NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 08/25/2022 'f" P.C.,WILSON PRIMARY MEDICAL CARE; P.C.,ZAKARIA MEDICAL SERVICE, P.C.,DWA YNE MACFARLANE, and AKIM PLU~MER; and it is further ORDERED that pla1ntiff shall serve a copy of the proposed supplemental summons and . " amended complaint in the proposed form annexed to :~he moving papers (NYSCEF doc. no. 118) upon all parties within twenty (20) days; and it is furtper ORDERED that plaintiff shall serve a copy of this order, with notice of entry, upon defendants and The Trial Support Office within ten O0) days; and .it is further ORDERED that defendants shall serve an answer to the amended complaint or otherwise · · move within twenty {20) days from the date .of said s; rvice; and it is further ORDERED that a virtual conference shall tak~ place on November 15, 2022 at 12:00 p.m. 8/25/2022 DATE CHECK ONE: ·§. CASE DISPOSED X . •· GRANTED APPLICATION : CHECK IF APPROPRIATE: DAKOTA D. RAMSEUR, J.S.C. . • . ': ~ DENIED i[ SETTLE ORDER .· j . . INCLUDES TRANSFER/REASSIG~ .· . . • NON-FINAL DISPOSITION GRANTED IN PART · SUBMIT ORDER . FIDUCIARY APPOINTMENT 158584/2021 STATE FARM FIRE AND CASUALTY COMPANY vs. ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC ET AL Motion No. 001 [* 6] 6 of 6 • • OTHER REFERENCE Page 6 of 6

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