Opinion
Index No. 650048/2020 Motion Seq. No. 002
10-17-2022
LIBERTY MUTUAL INSURANCE COMPANY, LM INSURANCE CORPORATION, Plaintiff, v. YVELYNE FRANCILLON, CARLINE ROUSSEAU, WADE VICTORIN, 5 BOROUGH ANESTHESIA PLLC,ADVANCED COMPREHENSIVE LABORATORY, ANDALELLA CHIROPRACTIC PC,ATLAS PHARMACY LLC,CONRAD F. CEAN MD, CONTEMPORARY ORTHOPEDICS PLLC,CORRECTALIGN CHIROPRACTIC PC,CROSSTOWN CHIROPRACTIC PC,CVS RX INC..GOTHAM SUPPLY GROUP INC.,HANK ROSS MEDICAL PC,INSPIRED CHIROPRACTIC PC,JA PHYSICAL THERAPY PC,JOINT PHYSICAL THERAPY PC,KH LEE ACUPUNCTURE PC,LINDEN WEST MEDICAL PC,MAL VINA DRUG CORP., METROPOLITAN MEDICAL & SURGICAL PC AKA METROPOL MEDICAL AND SURGERY, MYRTLE EXPRESS PHARMACY INC..NEXTSTEP HEALING INC..NOVA MEDICAL DIAGNOSTIC PC.NYEEQASC LLC,PREMIER ANESTHESIA ASSOCIATES PA, PROCARE HEALTH AND TECHNOLOGY, PROTECHMED INC.,ROYAL MEDICAL IMAGING PC,SABAS NY SERVICES INC.,SCOB LLC,UNICAST INC.,WARREN STREET ORTHOPEDIC REHABILITATION PC,WEI DAO ACUPUNCTURE PC Defendant.
Unpublished Opinion
MOTION DATE 06/17/2022
DECISION+ ORDER ON MOTION
HON. DAKOTA D. RAMSEUR, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 60, 61,62, 63, 64, 65, 66, 67, 70, 71,72 were read on this motion to/for JUDGMENT - DEFAULT.
Plaintiffs Liberty Mutual Insurance Company and LM Insurance Corporation commenced this declaratory judgment action against individual defendants-Yvelyne Francillon, Carline Rousseau, and Wade Victorin-and various medical provider defendants over no-fault reimbursement claims arising from medical treatment the individual defendants received after an alleged motor vehicle accident in June 2019. In their complaint, plaintiffs allege that their investigation of the accident revealed that the individual defendants materially misrepresented the facts of the accident and their injuries. As such, plaintiffs seek a declaration that they are not liable for the reimbursement claims submitted to them by the medical provider defendants. In Mot. Seq. 002, plaintiffs move pursuant to CPLR 3215 for default declaratory judgments against each defendant that failed to timely answer their complaint. The list of those defendants is as follows:
Individual Defendants
CARLINE ROUSSEAU WADE VICTORIN
Medical Provider Defendants
5 BOROUGH ANESTHESIA PLLC ADVANCED COMPREHENSIVE LABORATORY ANDALELLA CHIROPRACTIC PC CONRAD F CEAN MD CONTEMPORARY ORTHOPEDICS PLLC CORRECTALIGN CHIROPRACTIC PC CROSSTOWN CHIROPRACTIC PC CVS RX INC HANK ROSS MEDICAL PC INSPIRED CHIROPRACTIC PC JOINT PHYSICAL THERAPY PC KH LEE ACUPUNCTURE PC LINDEN WEST MEDICAL PC MALVINA DRUG CORP METROPOLITAN MEDICAL &SURGICAL PC aka METROPOL MEDICAL AND SURGERY MYRTLE EXPRESS PHARMACY INC. NOVA MEDICAL DIAGNOSTIC PC PREMIER ANESTHESIA ASSOCIATES PA SCOB LLC UNICAST INC. WARREN STREET ORTHOPEDIC WEI DAO ACUPUNCTURE PC
With respect to defendant SCOB LLC, it cross-moves pursuant to CPLR 3202 (d) for additional time to appear and plead in this matter. (NYSCEF doc. no. 61.) The Court will address the merits of the cross-motion after its discussion on plaintiffs' default-judgment motion.
Plaintiffs' Entitlement to Default Judgments
Pursuant to CPLR 3215 (f), on an application for a default judgment, the moving party must fde proof of having served the summons and complaint, the facts constituting the claim, and the defendant's default. Plaintiffs have satisfied each element and are thus entitled to default judgments.
Plaintiffs submitted proof of service of process on each defaulting defendant. (See NYSCEF doc. no. 41.)
As to the facts constituting the claim, insurance providers like plaintiffs may defend against no-fault insurance claims whenever there is 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 Grp. Of Ins. Co., 90 N.Y.2d 195, 199 [1997]; Matter of Metro Med. Diagnostics, P.C. v Eagle Ins. Co., 293 A.D.2d 751, 752 [2d Dept 2002].) Here, plaintiffs assert that the alleged injuries that the individual defendants suffered did not arise out of the accident and, therefore, they are not liable on the underlying insurance policy. Specifically, plaintiffs assert that the no-fault insurance claims arise out of fraud as the individual defendants intentionally misrepresented the circumstances of the accident and their injuries.
Plaintiffs submit the affidavits of Christopher Reyes (A Liberty Mutual Senior Claim Resolution Special) and Richard Ahren as proof of the facts giving rise to the claim. From these affidavits and the supporting papers, it is clear that Wade Victorin did not provide credible testimony regarding the accident or his injuries in his Examination Under Oath (EUOs).Victorin did not know where the accident occurred, could not describe the driver of the other vehicle nor any features of the vehicle itself, and placed the time of the accident at around 6:00 p.m., though both the police report and Francillon describe the accident as occurring more than two hours later. (NYSCEF doc. no. 1 at 16.) Victorin testified that neither police nor an ambulance arrived at the scene of the accident (NYSCEF doc. no. 52 at 20, transcript of Victorin's EUO), while Francillon testified that both arrived (NYSCEF doc. no. 53 at 22, transcript of Francillon's EUO). As to the origins of the police report, Victorin explained that James Alexis-the named insurance policyholder-later informed him that a police report had been filed. Yet Francillon provided contradictory testimony, asserting that she gave police her information on the scene and that they made a police report before any individual defendant left the scene. (Id. at 23.) Moreover, neither could explain why the police report listed "Victoria Wade" (as a female), as the passenger instead of, properly, Wade Victorin, who is male. Lastly, Carline Rousseau did not attend her scheduled EUO.
As provided by the insurance policy, policy claimants are required to appear for EUOs under oath to substantiate their claims. (See also 11 NYCRR §65-1.1.)
These facts demonstrate that plaintiffs have a 'founded belief that the alleged injuries sustained by the individual defendants were not a product of the accident, but of fraud. (See Central Gen. Hosp., 90 N.Y.2d at 199.) For purposes of declaratory judgment against individual defendants Rousseau and Victorin, plaintiffs submitted the requisite proof.
Plaintiffs have also made the requisite proof against the defaulting medical provider defendants. As assignees of rights owned by the individual defendants, these defendants stand in their shoes, i.e., they take the assignment of the individual defendants' rights but do so subject to any assertable defenses. (See Arena Constr. Co. v J. Sackaris &Sons, Inc., 282 A.D.2d 489, 489 [2d Dept 2001]; Long Is. Radiology v Allstate Ins. Co., 36 A.D.3d 763, 765 [2d Dept 2007].) As these claims are colored by the individual defendants' contradictory and misleading statements to plaintiffs, these defendants are likewise not entitled to receive any payments from plaintiffs for medical services provided as a result of the accident. (See American Alternative Ins. Corp, v Washington, 2018 NY Slip Op 51210[U] at 6-8 [Sup. Ct., NY County 2018].)
Lastly, plaintiffs have demonstrated that the above listed defendants defaulted. (See NYSCEF doc. no. 38.)
Defendant SCOB LLC's Cross-motion for Additional Time to Answer
The court exercises its broad discretion to grant defendant SCOB's motion. Several factors weigh in this direction. First, New York has a strong public policy favoring litigating claims on their merits (See Andrews v Petriga, 280 A.D.2d 374 [1st Dept 2001].) Second, defendant's proffered excuse, though perhaps weak, nonetheless is sufficient given defendant's delay in answering was relatively short. (It filed the instant cross-motion approximately one month after it was required to answer). (See Jones v 414 Equities LLC, 57 A.D.3d 65, 81-82 [1st Dept 2008].) Furthermore, such delay did not prejudice plaintiffs, either with respect to their default motion or, more generally, in the action against the remaining defendants. Plaintiffs do not suggest the delay was intentional or that it was intended to secure a litigating advantage. Lastly, Plaintiffs argue that SCOB has not proffered a meritorious excuse, yet such an excuse is not required where no default judgment has been entered. (Nason v Fisher, 309 A.D.2d 526, 526 [1st Dept 2003].) Because defendant's delay in appearing or answer was brief and unwilful, and there was no evidence that plaintiff was prejudiced, the Court grants defendant's motion. (See Hosten v Oladapo, 52 A.D.3d 658, 658-659 [2d Dept 2008].)
Accordingly, it is hereby
ORDERED that plaintiffs Liberty Mutual Insurance Company and LM Insurance Corporation's motion pursuant to CPLR 3215 for a default judgment against the above-listed non-answering defendants, except for defendant SCOB LLC, is granted; and it is further
ORDERED that plaintiffs' motion for a declaration that plaintiff validly denied all nofault claims by the non-answering defendants stemming from the alleged occurrence is granted; and it is further
ORDERED that defendant SCOB LLC's cross-motion pursuant to CPLR 3012 (d) for an extension of time to appear and plead in this matter and compel plaintiffs to accept its answer is granted; and it is further
ORDERED that counsel for plaintiffs shall serve a copy of this order, along with a notice of entry, on all parties within ten (10) days of this order.