Opinion
Index 152505/2021
01-19-2022
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, v. FELIX QUINONES, MIGUEL BURGOS, KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN, ADVANCED COMPREHENSIVE LABORATORY LLC, AMBULATORY SURGICAL CENTER OF ENGLEWOOD, LLC, AMIT KHANEJA NEUROLOGY PRACTICE PLLC, ASCE ANESTHESIA PC, LISS ACUPUNCTURE P.C., BL PAIN MANAGEMENT, PLLC, PC CHIROPRACTIC P.C., BP DYNAMIC REHAB PT P.C., BRONX SPECIALTY PHARMACY INC., BV PHYSICAL THERAPY P.C., CVS RX, INC., ENGLEWOOD ORTHOPEDICS GROUP PC, FAST CARE MEDICAL DIAGNOSTICS, PLLC, GRAND MEDICAL SUPPLY CORP, HYUN PHYSICAL THERAPY, P.C., ICONIC WELLNESS SURGICAL SERVICES L.L.C., JORDAN FERSEL M.D., P.C., JOSEPH A. RAIA, M.D., P.C., LENCO DIAGNOSTIC LABORATORIES, INC. LZ MEDICAL DIAGNOSTIC P.C., MAZ SUPPLY INC, MG CHIROPRACTIC, P.C., MIDDLE VILLAGE DIAGNOSTIC IMAGING, P.C., NAYALE LAFLEUR, N.P., PERFORMANCE CHIROPRACTIC, P.C., PETRYCHENKO PHYSICIAN P.C., RENAN MACIAS, M.D., STEPHEN MATRANGOLO, D.C., TIME TO CARE PHARMACY INC., REND MED, INC, TROMBMED NY, INC., and YEVGENIY MARGULIS, PhD, Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. VERNA L. SAUNDERS, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 were read on this motion to/for DEFAULT JUDGMENT.
Plaintiff now moves this court, pursuant to CPLR 3215, for a default judgment against FELIX A. QUINONES, MIGUEL BURGOS, KEVIN GONZALEZ a/k/a KEVIN GONZALEZ- TIBAN, ADVANCED COMPREHENSIVE LABORATORY LLC d/b/a TOPLAB, AMIT KHANEJA NEUROLOGY PRACTICE PLLC, BLISS ACUPUNCTURE P.C., BPC CHIROPRACTIC P.C., BRONX SPECIALTY PHARMACY INC., BV PHYSICAL THERAPY P.C., CVS RX, INC. d/b/a EXPRESS PHARMACY, HYUN PHYSICAL THERAPY, P.C.,, JORDAN FERSEL M.D., P.C., JOSEPH A. RAIA, M.D., P.C., LENCO DIAGNOSTIC LABORATORIES, INC., LZ MEDICAL DIAGNOSTIC P.C.,, MIDDLE VILLAGE DIAGNOSTIC IMAGING, P.C., NAYALE LAFLEUR, N.P., PETRYCHENKO PHYSICIAN P.C., and TROMBMED NY, INC ("the defaulting defendants") and a declaration that plaintiff is not required to pay no-fault benefits to the defaulting defendants since the individual defendants FELIX A. QUINONES, MIGUEL BURGOS and KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN procured the subject policy based on material misrepresentations. (NYSCEF Doc. No. 52, affirmation in support of motion).
Although plaintiff also seeks relief against AMBULATORY SURGICAL CENTER OF ENGLEWOOD, LLC, ASCE ANESTHESIA PC, and ENGLEWOOD ORTHOPEDICS GROUP PC, plaintiff later stipulated to accept their answers. (NYSCEF Doc. Nos. 109, 112, stipulation and answer). Further, plaintiff discontinued the action as to defendants MAZ SUPPLY INC., ICONIC WELLNESS SURGICAL SERVICES L.L.C., and TREND MED, INC. (NYSCEF Doc. Nos. 102-103).
Despite service of the motion, the defaulting defendants have failed to appear or oppose the motion. (NYSCEF Doc. No. 98, affidavit of service).
CPLR 3215(a) provides, in pertinent part, that when "a defendant has failed to appear, plead or proceed to trial... the plaintiff may seek a default judgment against him [or her]." To establish his or her entitlement to a default judgment, the movant must demonstrate proof of service of the summons and complaint, proof of the facts constituting the claim and proof of the default. (See PV Holding Corp. v AB Quality Health Supply Corp., 2020 NY Slip Op 07725, *1 [1st Dept 2020]; Gantt v North Shore-LIJ Health Sys., 140 A.D.3d 418, 418 [1st Dept 2016]). An application for a default judgment must be supported by either an affidavit of facts made by one with personal knowledge of the facts surrounding the claim or a complaint verified by a person with actual knowledge of the facts surrounding the claim. (See Zelnick v Biderman Industries U.S.A., Inc., 242 A.D.2d 227, 228 [1st Dept 1997]; Hazim v Winter, 234 A.D.2d 422, 422 [2d Dept 1996].)
An insurer may assert a lack of coverage based on a material misrepresentation. "A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented." (Liberty Mut. Ins. Co. v Castillo, 2020 NY Slip Op 34358[U], *2 [Sup Ct, NY County 2020]). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application." (Schirmer v Penkert, 41 A.D.3d 688, 690-691 [2d Dept 2007].)
Here, plaintiff has demonstrated that the defaulting defendants were duly served with process and that additional copies of the pleadings were mailed as required by CPLR 3215 (g)(4). (NYSCEF Doc. No. 60-91, affidavits of service). Plaintiff also annexes affirmation of non-military status of the individual defaulting defendants. (NYSCEF Doc. Nos. 62, 64, 66). To date, the defaulting defendants have failed to answer, appear, or obtain an order from the court extending the time to do so, and the time to answer or otherwise appear has expired.
As to the facts constituting the claim, plaintiff submits, inter alia, the subject insurance policy (NYSCEF Doc. No. 68, insurance policy); the examinations under oath of MIGUEL BURGOS and KEVIN GONZALEZ (NYSCEF Doc. Nos. 69-70, EUO transcripts). Further, upon review of the affidavit of Timothy Dacey ("Dacey"), plaintiffs claims specialist, who affirms that the individual defendants staged and/or intentionally caused the accident on February 26, 2020 (NYSCEF Doc. No. 55, Dacey's affidavit), this court finds that plaintiff has established the facts constituting the claim. Accordingly, it is hereby
ORDERED that plaintiffs motion seeking a default judgment against FELIX A. QUINONES, MIGUEL BURGOS, KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN, ADVANCED COMPREHENSIVE LABORATORY LLC d/b/a TOPLAB, AMIT KHANEJA NEUROLOGY PRACTICE PLLC, BLISS ACUPUNCTURE P.C., BPC CHIROPRACTIC P.C., BRONX SPECIALTY PHARMACY INC., BV PHYSICAL THERAPY P.C., CVS RX, INC. d/b/a EXPRESS PHARMACY, HYUN PHYSICAL THERAPY, P.C., JORDAN FERSEL M.D., P.C., JOSEPH A. RAIA, M.D., P.C., LENCO DIAGNOSTIC LABORATORIES, INC., LZ MEDICAL DIAGNOSTIC P.C., MIDDLE VILLAGE DIAGNOSTIC IMAGING, P.C., NAYALE LAFLEUR, N.P., PETRYCHENKO PHYSICIAN P.C., and TROMBMED NY, INC is granted; and it is further
ORDERED, ADJUDGED and DECLARED that plaintiff has no duty to pay any no-fault benefits in the form of sums, monies, damages, awards or benefits to FELIX A. QUINONES, MIGUEL BURGOS, KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN, ADVANCED COMPREHENSIVE LABORATORY LLC d/b/a TOPLAB, AMIT KHANEJA NEUROLOGY PRACTICE PLLC, BLISS ACUPUNCTURE P.C., BPC CHIROPRACTIC P.C., BRONX SPECIALTY PHARMACY INC., BV PHYSICAL THERAPY P.C., CVS RX, INC. d/b/a EXPRESS PHARMACY, HYUN PHYSICAL THERAPY, P.C., JORDAN FERSEL M.D., P.C., JOSEPH A. RAIA, M.D., P.C., LENCO DIAGNOSTIC LABORATORIES, INC., LZ MEDICAL DIAGNOSTIC P.C., MIDDLE VILLAGE DIAGNOSTIC IMAGING, P.C., NAYALE LAFLEUR, N.P., PETRYCHENKO PHYSICIAN P.C., and TROMBMED NY, INC, their agents, employees, assignees or heirs arising out of any current or future proceeding, including without limitation, arbitrations and lawsuits seeking to recover no-fault benefits with respect to the claims submitted by FELIX A. QUINONES, MIGUEL BURGOS, and KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN in connection with the February 26, 2020 loss referenced in the complaint; and it is further
ORDERED, ADJUDGED and DECLARED that all no-fault lawsuits, arbitrations, including uninsured motorist, awards, and claims filed by FELIX A. QUINONES, MIGUEL BURGOS, KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN, ADVANCED COMPREHENSIVE LABORATORY LLC d/b/a TOPLAB, AMIT KHANEJA NEUROLOGY PRACTICE PLLC, BLISS ACUPUNCTURE P.C., BPC CHIROPRACTIC P.C., BRONX SPECIALTY PHARMACY INC., BV PHYSICAL THERAPY P.C., CVS RX, INC. d/b/a EXPRESS PHARMACY, HYUN PHYSICAL THERAPY, P.C., JORDAN FERSEL M.D., P.C., JOSEPH A. RAIA, M.D., P.C., LENCO DIAGNOSTIC LABORATORIES, INC., LZ MEDICAL DIAGNOSTIC P.C., MIDDLE VILLAGE DIAGNOSTIC IMAGING, P.C., NAYALE LAFLEUR, N.P., PETRYCHENKO PHYSICIAN P.C., and TROMBMED NY, INC, arising from or related to the claims submitted by FELIX A. QUINONES, MIGUEL BURGOS, and KEVIN GONZALEZ a/k/a KEVIN GONZALEZ-TIBAN in connection with the February 26, 2020 loss referenced in the complaint are hereby stayed; and it is further
ORDERED that this judgment shall have no effect as to the appearing defendants; and it is further
ORDERED that, within twenty (20) days after this decision and order is uploaded to NYSCEF, counsel for plaintiffs shall serve a copy of this decision and order, with notice of entry, upon defendants, as well as, the Clerk of the Court, who shall enter judgment accordingly; and it is further
ORDERED that service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
ORDERED that all parties who have appeared in this action shall participate in a remote conference on April 6, 2022, details which shall be provided no later than April 4, 2022.