Am. Transit Ins. Co. v. Jeanty

Full title: AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff, v. JEAN JEANTY, BRONX…

Court: SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 42EFM

Date published: Sep 12, 2019

2019 N.Y. Slip Op. 33112 (N.Y. Sup. Ct. 2019)

Opinion

INDEX NO. 656208/2018

09-12-2019

AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff, v. JEAN JEANTY, BRONX CHIROPRACTIC REHABILITATION PC,COMFORT PHYSICAL THERAPY PLLC,DAMADIAN MRI IN CANARSIE PC,HABOR MEDICAL GROUP PC,HAMZA PHYSICAL THERAPY PLLC,HANKROSS MD, JULES PARISIEN, LIVINGSTON PHYSICAL MEDICINE, MASTER CHENG ACUPUNCTURE PC,NEW YORK CHIRO CARE PC,PSYCHOLOGY AFTER ACCIDENT PC,RALPH INNOVATIVE MEDICAL PC,REHAB CARE PHYSICAL THERAPY PC,RKD PHARMACY DBA RKD RX CORP, SPINE CARE OF NJ PC,RVS SUPPLY CORP, SOOD MEDICAL PRACTICE LLC Defendant.

HON. NANCY M. BANNON Justice

NYSCEF DOC. NO. 31 PRESENT: HON. NANCY M. BANNON Justice MOTION DATE 09/20/2019 MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for JUDGMENT - DEFAULT.

In this declaratory judgment action brought under article 51 of the Insurance Law, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against individual defendant Jean Jeanty (Jeanty) and defendants Bronx Chiropractic Rehabilitation, PC, Comfort Physical Therapy, PLLC, Damadian MRI In Canarsie, PC, Harbor Medical Group, C, Hamza Physical Therapy, PLLC, Hank Ross, MD, Jules F. Parisien, MD, Livingston Physical Medicine, Master Cheng Acupuncture, PC, New York Chiro Care, PC, Psychology After Accident, PC, Ralphy Innovative Medical, PC, Rehab Care Physical Therapy, PC, RKD Pharmacy dba RKD Rx Corp., Spine Care of NJ, PC, RVS Supply Corp. and Sood Medical Practice (the non-answering defendants) declaring that it is not obligated to pay no-fault benefits to Jeanty in connection with injuries she sustained in a motor vehicle accident, or to reimburse the defaulting medical defendants for treatment they rendered or equipment and supplies they provided to Jeanty for those injuries. No opposition is submitted. The motion is granted.

Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof of the facts constituting the claim, and proof of the defendant's defaults (see CPLR 3215[f]; Rivera v Correction Officer L. Banks, 135 AD3d 621 [1^st Dept 2016]), timely move for that relief (see CPLR 308[2]; 320[a], 3215[c]; Gerschel v Christensen, 128 AD3d 455, 457 [1^st Dept 2015]), and satisfy the notice requirements for the motion (CPLR 3215[g]). CPLR 3215(f) requires a party moving for leave to enter a default judgment to submit to the court, among other things, "proof of the facts constituting the claim." "CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action [see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27]." Joosten v Gale, 129 AD2d 531, 535 (1^st Dept 1987); see Martinez v Reiner, 104 AD3d 477 (1^st Dept 2013); Beltre v Babu, 32 AD3d 722 (1^st Dept. 2006); Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 AD3d 649 (2^nd Dept. 2011). While the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered." Guzetti v City of New York, 32 AD3d 234, 236 (1^st Dept. 2006). The proof submitted must establish a prima facie case. See id; Silberstein v Presbyterian Hosp., 95 AD2d 773 (2^nd Dept. 1983).

Jeanty alleged in her application for benefits that she was injured in a motor vehicle accident on May 25, 2018, and that she thereafter obtained medical treatment or medical supplies from all of the other defendants. Those other defendants sought payment, as Jeanty's assignees, for no-fault benefits under insurance policy number B514785, Claim No. 1029472-01, as issued by the plaintiff. See Insurance Law 5106(a); 11 NYCRR 65-1.1. In support of its motion for leave to enter a default judgment against the defaulting medical defendants, the plaintiff submits the pleadings, an attorney's affirmation, a series of affidavits from its claims representatives, the NF-2 no-fault claim form submitted by Jeanty, dated June 22, 2018, and notices for an EUO that it sent to her, the first of which was on July 10, 2018. The plaintiff's submissions establish that within the prescribed time limits under NY 65-3.5(a-b) the initial notice for examination under oath (EUO) timely mailed to Jeanty. See Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 (1^st Dept. 2017); National Liability & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851, 851 (1^st Dept 2015); American Transit Ins Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 (1^st Dept 2015); Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1^st Dept. 2011). Although the EUO was scheduled beyond the thirty-day limit prescribed in NY 65-3.5(d), the court finds that this is a non-substantive and immaterial defect, as contemplated under NY 65-3.5(p), and therefore recovery is not barred.

Accordingly, it is

ORDERED that the plaintiff's motion for leave to enter a default judgment against non-answering defendants Jean Jeanty, Bronx Chiropractic Rehabilitation, PC, Comfort Physical Therapy, PLLC, Damadian MRI In Canarsie, PC, Harbor Medical Group, C, Hamza Physical Therapy, PLLC, Hank Ross, MD, Jules F. Parisien, MD, Livingston Physical Medicine, Master Cheng Acupuncture, PC, New York Chiro Care, PC, Psychology After Accident, PC, Ralphy Innovative Medical, PC, Rehab Care Physical Therapy, PC, RKD Pharmacy dba RKD Rx Corp., Spine Care of NJ, PC, RVS Supply Corp. and Sood Medical Practice is granted; and it is further,

ADJUDGED AND DECLARED that the plaintiff is not obligated to pay no-fault benefits to the to the defendant Jean Jeanty in connection with injuries sustained in a motor vehicle accident on May 25, 2018, or to reimburse the defendants Bronx Chiropractic Rehabilitation, PC, Comfort Physical Therapy, PLLC, Damadian MRI In Canarsie, PC, Harbor Medical Group, C, Hamza Physical Therapy, PLLC, Hank Ross, MD, Jules F. Parisien, MD, Livingston Physical Medicine, Master Cheng Acupuncture, PC, New York Chiro Care, PC, Psychology After Accident, PC, Ralphy Innovative Medical , PC, Rehab Care Physical Therapy, PC, RKD Pharmacy dba RKD Rx Corp., Spine Care of NJ, PC, RVS Supply Corp. and Sood Medical Practice for treatment they rendered or equipment and supplies they provided to her for those injuries; and it is further,

ADJUDJED AND DECLARED that all actions, proceedings, or arbitrations commenced by Jean Jeanty, Bronx Chiropractic Rehabilitation, PC, Comfort Physical Therapy, PLLC, Damadian MRI In Canarsie, PC, Harbor Medical Group, C, Hamza Physical Therapy, PLLC, Hank Ross, MD, Jules F. Parisien, MD, Livingston Physical Medicine, Master Cheng Acupuncture, PC, New York Chiro Care, PC, Psychology After Accident, PC, Ralphy Innovative Medical, PC, Rehab Care Physical Therapy, PC, RKD Pharmacy dba RKD Rx Corp., Spine Care of NJ, PC, RVS Supply Corp. and Sood Medical Practice arising from injuries alleged to have been sustained by Jean Jeanity as a result of the May 25, 2018 accident are permanently stayed, and that the defendants are enjoined from commencing any such further actions, proceedings, or arbitrations; and it is further

ORDERED that the plaintiffs shall serve a copy of this order with notice of entry upon all defendants within 30 days of the date of this order.

This constitutes the Decision and Order of the court. 9/12/2019

DATE

/s/ _________

NANCY M. BANNON, J.S.C.