Hereford Ins. Co. v Stand-Up MRI of the Bronx, P.C.

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Hereford Ins. Co. v Stand-Up MRI of the Bronx, P.C. 2022 NY Slip Op 33560(U) October 18, 2022 Supreme Court, New York County Docket Number: Index No. 151824/2021 Judge: Mary V. Rosado 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. 151824/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:46 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/18/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 33 _H:....a...;::;;O~N=·~M~A~R~Y.:_.:.V~-~R~O~S~A~D~0~_ _ _ _ __..;_1 PART Justice : --------X INDEX NO. HEREFORD INSURANCE COMPANY, MOTION DATE Plaintiff, 151824/2021 04/12/2022 MOTION SEQ. NO. _ _---=.0.::...01.:_____ - V - STAND-UP MRI OF THE BRONX, P.C.,PRO FORM PHYSICAL THERAPY P.C.,EVAN G PASQUA, JOHN A. MITAMURA, M.D., BEACON HILL ORTHOPEDICS PLLC,ROCKLAND AND BERGEN SURGERY CENTER, ROBERT A. MARINI, M.D., MOS MEDICAL DEVICE SPECIALTY, INC.,NYC HEALTH & HOSPITALS, YOLANDA JEFFERSON DECISION + ORDER ON MOTION Defendant. -------- ·--------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,27, 29 JUDGMENT - DEFAULT were read on this motion to/for i Upon the foregoing documents, and,there being no opposition, Plaintiff Hereford Insurance I Company's ("Plaintiff') motion for default judgment is granted. This action arises out of an alleged motor-vehicle collision in the Bronx which took place on August 27, 2018 (NYSCEF Doc. 1 at ,i 12). Defendant Y:o landa Jefferson ("Jefferson") was a passenger in a taxi being driven by Thomas Ampofo ("Ampofo") which was insured by Plaintiff (id.). There was no police report authored regarding the accident, but Jefferson claims the insured vehicle hit a motorcycle and crashed out of control (id. at ·,J 13). When the Plaintiff contacted i Ampofo, he deriied being involved in an accident on that day; (id.). According to a sworn statement from Ampofo, he was driving Jefferson when he saw a crowd of people surrounding a pedestrian who was hit by an MTA bus (id. at ,J 14). This caused Ampofo to pull to the side of the road and call 911 (id.) . When Ampofo got back in the car, he 151824/2021 HEREFORD INSURANCE COMPANY vs. STAND-UP MRI OF T!iE BRONX, P.C., ET AL Motion No. 001 [* 1] 1 of 9 Page 1 of 5 INDEX NO. 151824/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:46 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/18/2022 claims Jefferson was on the phone complaining about beihg injured in an auto collision (id.). Jefferson submitted a claim to Plaintiff stating she sustained extensive bodily injuries as a result of the alleged collision (id. at~ 15). Jefferson appeared for an examination under oath ("EUO") where Plaintiff alleges she contradicted herself multiple times (id. at~ 33). Specifically, (1) Jefferson said she believed the car collided with a large pothole or someone on a bicycle, but later admitted she did not see a pothole or a bicycle when she exited the vehicle after the ct:>llision; (2) Jefferson said she saw a person laying on the ground and assumed the person was hit by the insured vehicle, but when confronted with the fact that an MTA bus hit a pedestrian in· that area, she could not explain why she assumed her vehicle had hit a person; (3) Jefferson claims Ampofo told her he hit a person even though Ampofo's sworn statement denied this; (4) Jefferson denied ever saying the collision occurred when the insured vehicle hit a motorcycle even though the claim she submitted alleges her injuries were caused from an accident with a motorcycle, and (5) Jefferson says she was injured when she hit the front-passenger seat even though she was wearing her seatbelt (id.). Plaintiff therefore alleges it has a founded belief that :P laintiffs injuries did not arise from ; an insured event or was not causally related to the August 27, 2018 collision and disclaimed coverage on that basis (id. at ~ 34). Plaintiff therefore initiated this action seeking declaratory judgment on February 23, 2021. . Defendants New York Chy Health and Hospital <torporation S/H/ Al NYC Health & Hospitals A/KIA North Central Bronx Hospital filed an Answer to Plaintiffs Complaint and settled with Plaintiff (NYSCEF Docs. 12, 28). However, none of the other Defendants have filed an answer or otherwise appeared. Therefore, Plaintiff filed ~his motion for default judgment on March 18, 2022 against Defendants Stand-Up MRI of the Bronx, P.C., Pro Form Physical Therapy I 151824/2021 [* 2] HEREFORD INSURANCE COMPANY vs. STAND-UP MRI OF T~E BRONX, P.C., ET AL Motion No. 001 2 of 9 Page 2 of 5 INDEX NO. 151824/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:46 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/18/2022 P.C., Evan G. Pasqua, John A. Mitamura, M.D., Beacon H\ill Orthopedics PLLC, Rockland and Bergen Surgery Center, Robert A. Marini, M.D., and MDS Medical Device Specialty Inc. (NYSCEF Doc. 15). An applicant for default judgment against a defendaljlt must submit: (i) proof of service of the summons and complaint, (ii) proof of the facts constituting the claim, and (iii) proof of the defaulter's failure to appear (PV Holding Corp v AB Quality Health Supply Corp, 189 AD3d 645 [1st Dept 2020]). Affidavits submitted in support of a moti9n for default judgment only need to allege enough facts to allow a court to assess where a viable cause of action exists (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The G:ourt is mindful that "defaulters are deemed to have admitted all factual allegations in the compl.iint and all reasonable inferences that ' flow from them (Al Fayed v Barak, 39 AD3d 371, 372 [list Dept 2007]). Default judgment is appropriate where, as here, the conditions of CPLR 3215: have been satisfied and an insurer disclaims coverage on a founded belief that alleged injuries did not arise out of a reported accident (State Farm Mutual Automobile Insurance Company vAK Global Supply Corp., 203 AD3d 556 [1st Dept 2022]). The Court is satisfied that Plaintiff has satisfied the service requirements of CPLR 3215 (NYSCEF Docs. 15, 22, and 24). Further, Plaintiff has shoWn proof of the facts constituting its claim in compliance with CPLR 3215(f) since Plaintiff has provided the affidavit of the adjuster who is handling this claim, an affidavit from Ampofo, Jefferson's application for no-fault benefits, and Jefferson's EUO Transcript (NYSCEF Docs. 17-20). M(!)reover, Plaintiff has provided a nonmilitary status report for individual defendants Robert Marini, John Mitamura, and Evan Pasqua (NYSCEF Doc. 23). As Plaintiff has complied with the procedural requirements of CPLR 3215, 151824/2021 ' BRONX, P.C., ET HEREFORD INSURANCE COMPANY vs. STAND-UP MRI OF THE AL Motion No. 001 [* 3] 3 of 9 Page 3 of 5 INDEX NO. 151824/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:46 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/18/2022 and defaulters are deemed to have admitted all the factual allegations in the Complaint, default judgment is appropriate here. Accordingly, it is hereby, ORDERED that Plaintiffs motion for default judgment against Defendants Stand-Up MRI of the Bronx, P.C., Pro Form Physical Therapy P.C., Evan G. Pasqua, John A. Mitamura, M.D., i Beacon Hill Orthopedics PLLC, Rockland and Bergen Surgery Center, Robert A. Marini, M.D., and MDS Medical Device Specialty Inc. is granted; and it is further ORDERED, ADJUGDED, AND DECLARED that'Yolanda Jefferson's alleged injuries and any subsequent no-fault treatment submitted by Defendants Stand-Up MRI of the Bronx, P.C., ' Pro Form Physical Therapy P.C., Evan G. Pasqua, Johh. A. Mitamura, M.D., Beacon Hill Orthopedics PLLC, Rockland and Bergen Surgery Center, Robert A. Marini, M.D., and MDS Medical Device Specialty Inc. were not causally related to the alleged incident of August 27, 2018 referenced in the Complaint (Hereford claim number 77957) and did not arise from an insured event; and it is further, ORDERED, ADJUGDED, AND DECLARED that Plaintiff owes no duty to provide nofault reimbursements to Defendants Stand-Up MRI of the Bronx, P.C., Pro Form Physical Therapy P.C., Evan G. Pasqua, John A. Mitamura, M.D., Beacon Hill Orthopedics PLLC, Rockland and ,, ,i Bergen Surgery Center, Robert A. Marini, M.D., and MDS Medical Device Specialty Inc. for any treatment allegedly rendered to Jefferson in connection with the alleged incident of August 27, 2018 referenced in the Complaint (Hereford claim number 77957); and it is further, ORDERED, ADJUDGED, AND DECLARED that by reason of no coverage, Plaintiff is not required to pay any sums, monies, damages, awards and/or benefits to Stand-Up MRI of the Bronx, P.C., Pro Form Physical Therapy P.C., Evan G. Pasqua, John A. Mitarnura, M.D., Beacon 151824/2021 HEREFORD INSURANCE COMPANY vs. STAND-UP MRI OF THE BRONX, P.C., ET AL ' Motion No. 001 [* 4] 4 of 9 Page 4 of 5 INDEX NO. 151824/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:46 PM NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/18/2022 Hill Orthopedics PLLC, Rockland and Bergen Surgery Center, Robert A. Marini, M.D., and MDS Medical Device Specialty Inc, including but not limited to Mandatory Personal Injury Protection No-Fault, Additional Personal Injury Protection, Bodily I~jury and Property Damage Liability, and Supplemental Uninsured/Underinsured Motorist Coverage, for any treatment allegedly ' ' rendered to Yolanda Jefferson, in connection with the a\leged incident of August 27, 2018, (Hereford claim number 77957), and it is further; ORDERED that the Clerk of the Court is directed t6 enter judgment as against Stand-Up MRI of the Bronx, P.C., Pro Form Physical Therapy P.C.,: Evan G. Pasqua, John A. Mitamura, M.D., Beacon Hill Orthopedics PLLC, Rockland and Bergen Surgery Center, Robert A. Marini, M.D., and MDS Medical Device Specialty Inc, including but not limited to Mandatory Personal Injury Protection No-Fault, Additional Personal Injury Protection, Bodily Injury and Property Damage Liability, and Supplemental Uninsured/Underinsured Motorist Coverage; and it is further ORDERED that this action is severed and continues against the remaining Defendant Yolanda Jefferson; and it is further, ORDERED that within 30 days of entry, plaintiff ~hall serve a copy of this Order upon defendant, with notice of entry. 10/18/2022 DATE HON. MARY V. ROSADO, J.S.C. CASE DISPOSED CHECK ONE: x GRANTED • x DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 151824/2021 HEREFORD INSURANCE COMPANY vs. STAND-UP MRI OF THE BRONX, P.C., ET AL Motion No. 001 [* 5] NON-FINAL DISPOSITION 5 of 9 • • OTHER REFERENCE Page 5 of 5

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