State Farm Mut. Auto. Ins. Co. v Aviv Med., PC.

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State Farm Mut. Auto. Ins. Co. v Aviv Med., PC. 2022 NY Slip Op 33569(U) October 17, 2022 Supreme Court, New York County Docket Number: Index No. 157132/2021 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. 157132/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:17 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/18/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 33 PART HON. MARY V. ROSADO Justice ------------ -----X INDEX NO. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, MOTION DATE MOTION SEQ. NO. Plaintiff, 157132/2021 06/13/2022 --- - -001 -vAVIV MEDICAL, PC.DIANNA BRUNO, EXTENSION PT . PC,IA CHIROPRACTIC PLLC,KINGS COUNTY HOSPITAL, KNAPP ORTHO SERVICES, LEE ASSOCIATED DIAGNOSTIC LLC,METRO CHEMIST PHARMACY INC, OM PHYSICAL THERAPY, PETRYCHENKO PHYSICIANS PC.PROMETHEUS IMAGING LLC,QUEENS ARTHROSCOPY AND SPORTS MEDICINE, ROCKAWAY PARK MEDICAL PC.SILVER NEEDLE ACUPUNCTURE PC.STAR MEDICAL DIAGNOSTIC, TITAN DIAGNOSTIC IMAGING SERVICE, VNS PHARMACY, NYC FIRE DEPARTMENT EMS, MARDOCHE THERAZIN DECISION + ORDER ON MOTION Defendant. -----------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31 , 32, 33, 34, 35, 36,37, 38, 39,40,41,42, 43,44,4~46, 47, 53 JUDGMENT - DEFAULT were read on this motion to/for Upon the foregoing documents, and the motion being unopposed, Plaintiff State Farm Mutual Automobil~ Insurance Company's ("Plaintiff') motion for default judgment is granted. This action arises out of an automobile collision reported to have occurred on October 26, 2020 (NYSCEF Doc. 1). Plaintiff seeks a declaration stating it is under no obligation to provide no-fault benefits to the insured, Mardoche Therazin ("Therazin"), and any of the medical providers belief that the accident was staged he has assigned his benefits to, on the basis that it has a founded , ~ and therefore is not covered under Therazin's automobile policy. I In particular, Plaintiff alleges (1) that the policies on both vehicles involved in the accident began shortly before the collision,; (2) the driver of the other vehicle involved in the collision, 157132/2021 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs . AVIV MEDICAL, PC ET AL Motion No. 001 [* 1] 1 of 5 Page 1 of 5 l INDEX NO. 157132/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:17 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/18/2022 Aikeem Feiton, has two prior claims reported to be potentially staged losses; (3) the insured vehicle's license plate from the DMV registry differed from the plates on the police report indicating the vehicle had f~lse plates; (4) Therazin ~used a body shop that was previously associated with prior questionable claims, and (5) Theraiin's attorney previously represented Feiton, the other driver involved in other potentially stage,d claims (NYSCEF Doc. 1 at , 30). _ Plaintiff also claims· Therazin's examination under oath {"EUO") testimony had multiple · contradictions, including his alleged treatment and injuries' differing from the bills submitted by medical providers, and his testimony that he called a man he knew only as "Boni" right after the loss and could not explain why (Plaintiff later alleges that "Boni" was a runner who steered Therazin for medical treatment) (id. at , 32). Therefore, Pl~intiff filed this Complaint on July 31, 2021 seeking declar~tory judgment that it owes no coverage to Therazin or any of his assignees for no-fauhpayments related to the purported October 26, 2020 collision (id.). In response to Plaintiffs Complaint, Defendants VNS Pharmacy; Aviv Medical, PC, IA . . Chiropractic PLLC, Rockaway Park Medical PC, Silver Needle Acupuncture PC, Dianna Bruno, and Om Physical Therapy filed Answers (NYSCEF Docs. i 1, 24 and 48). Therefore, Plaintiff has moved for default judgment against the remaining Defendants that have not appeared (NYSCEF Doc. 30). An applicant for default judgment against a defend~nt must submit: (i) pr~of 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 motion for default judgment only need to allege enough facts to allow a court to ass~ss where a viable cause of action exists (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The 1court is mindful that "defaulters are 157132/2021 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs. AVIV MEDICAL,. PC ET AL Motion No. 001 [* 2] 2 of 5 Page 2 of 5 -I ' INDEX NO. 157132/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:17 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/18/2022 deemed to have admitted all factual allegations in the complaint and all reasonable inferences that ~ flow from them (Al Fayed v Barak, 39 AD3d 371, 372 (1st Dept 2007]). Default judgment is appropriate where, as here, the conditions of CPLR 321 ~ 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 v AKiGlobal Supply Corp., 203 AD3d 556 (1st Dept 2022]). The Court is satisfied that Plaintiff has complied with the service requirements of CPLR 3215(g) (NYSCEF Docs. 34, 3 8, 46). The Court is also satisfied that Plaintiff has complied with CPLR 3215 (f) by providing sufficient proof of the facts of its claim (NYSCEF Doc. 32, 39, 40, 41, 43). Further, Plaintiff has provided a non-military affiddvit for Defendant Therazin (NYSCEF Doc. 35). Therefore, Plaintiff is entitled to default judgment against the defaulting defendants. Accordingly, it is hereby, ORDERED that Plaintiffs motion for default judgment against Extension PT PC, Kings County Hospital, Knapp Ortho Services, Lee Associated Diagnostic LLC, Petrychenko Physicians PC, Prometheus Imaging LLC, Queens Arthroscopy and Sports Medicine, Star Medical ,1 Diagnostic, Titan Diagnostic Imaging Service, NY Fire Department EMS, and Mardoche Therazin } . is granted; and it is further ORDERED, ADJUDGED, AND DECLARED that Mardoche Therazin's alleged injuries and any subsequent No-Fault treatment submitted by Extt:;nsion PT PC, Kings County Hospital, Knapp Ortho Services, Lee Associated Diagnostic LLC, P~trychenko Physicians PC, Prometheus ' Imaging LLC, Queens Arthroscopy and Sports Medidne, Star Medical Diagnostic, Titan Diagnostic Imaging Service, NY Fire Department EMS, and Mardoche Therazin, were not 157132/2021 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs. AVIV MEDICAL, PC ET AL Motion No. 001 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 157132/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:17 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/18/2022 causally related to the October 26, 2020 collision referenced in the Complaint (claim number 3212X8-63R) and/or did not arise from an insured event; and it is further, ORDERED, ADJUDGED, and DECLARED, that ;Plaintiff, by reason of no coverage, since Mardoche Therazin's alleged injuries and any subsequent No-Fault treatment submitted by Extension PT PC, Kings County Hospital, Knapp Ortho Serv,ices, Lee Associated Diagnostic LLC, Petrychenko Physicians PC, Prometheus Imaging.LLC, Queens Arthroscopy and Sports Medicine, Star Medical Diagnostic, Titan Diagnostic Imaging Servke, NY Fire Department EMS, and Mardoche Therazin, were not causally related to the October 26, 2020 collision referenced in the Complaint (claim number 32-12X8-63R), and/or did not' arise from an insured ·event, is not required to pay any sums, monies, damages, awards and/or benefits to Extension PT PC, Kings County Hospital, Knapp Ortho Services, Lee Associated Diagnostic LLC, Petrychenko Physicians PC, Prometheus Imaging LLC, Queens Arthroscopy and Sports Medicine, Star Medical Diagnostic, Titan Diagnostic Imaging Service, NY Fire Department EMS, and Mardoche Therazin including but not limited to mandatory personal injury protection (No-Fault), additional personal mJury protection, bodily mJury and property damage liability, and supplemental uninsured/underinsured motorist coverage, in connection with the alleged incident of October 26, 2020 (claim number 32-12X8-63R); and it is further, ORDERED that the Clerk of the Court is directed to enter judgment as against Defendants Extension PT PC, Kings County Hospital, Knapp Ortho Services, Lee Associated Diagnostic LLC, Petrychenko Physicians PC, Prometheus Imaging LLC, Queens Arthroscopy and Sports Medicine, Star Medical Diagnostic, Titan Diagnostic Imaging Service, NY Fire Departm~nt EMS, and Mardoche Therazin; and it is further 157132/2021 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs. AVIV MEDICAL PC ET AL ' Motion No. 001 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 157132/2021 FILED: NEW YORK COUNTY CLERK 10/18/2022 12:17 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/18/2022 ORDERED that this action is severed and shall proceed against the remaining Defendants VNS Pharmacy, Aviv Medical, PC, IA Chiropractic PLLc:, Rockaway Park Medical PC, Silver Needle Acupuncture PC, Dianna Bruno, and Om Physical 'Therapy; and it is further ORDERED that Plaintiff shall serve a copy of this decision and order on all parties within seven (7) days of entry. This constitutes the decision and order of the Court. ' 10/17/2022 DATE N. MARY V. ROSADO, 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 157132/2021 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs. AVIV MEDICAL, PC ET AL Motion No. 001 [* 5] 5 of 5 • • OTHER REFERENCE Page 5 of 5

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