Opinion
INDEX NO. 651755/2018
09-11-2019
NYSCEF DOC. NO. 55 PRESENT: HON. NANCY M. BANNON Justice MOTION DATE 05/21/2019, 05/21/2019 MOTION SEQ. NO. 001 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 were read on this motion to/for JUDGMENT - DEFAULT. The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 were read on this motion to/for JUDGMENT - SUMMARY.
In this action, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendants Malcolm T. Pryce (the individual defendant) and Englinton Medical, P.C., Randall Victor Ehrlich, M.D., P.C., Lenco Diagnostic Laboratories, Inc., Excel Surgery Center, LLC, 21st Century Pharmacy, Inc., Jeff Harmonize Acupuncture, P.C., Miisupply LLC, Starrett City Medical P.C., Othera Occupational Therapy, P.C., and EA Chiropractic Diagnostics, P.C. (the non-answering health-care defendants), declaring that it is not obligated to pay no-fault benefits to the individual defendant or the health-care defendants to reimburse them for treatment they rendered or medical equipment they provided to the individual defendant for injuries allegedly sustained in an auto accident on November 19, 2015. The plaintiff moves separately for summary judgment pursuant to CPLR 3212 against answering defendant New York City Health and Hospitals D/B/A Kings County Hospital Center on the grounds that eligible injury party defendant failed to appear for duly scheduled Examinations Under Oath (EUOs). The plaintiff's motion for a default judgment is denied without prejudice. The plaintiff's motion for summary judgment is granted.
In the application for no-fault benefits, the individual defendant alleged, inter alia, that he was injured in a motor vehicle accident on November 19, 2015, and that he thereafter obtained medical treatment or medical supplies from the health-care defendants. According to the plaintiff, the health-care defendants sought payment under claim number 000310985-002, as assignees of the individual defendant, for no-fault benefits under insurance policy number PS9385171-15. See Insurance Law 5106(a); 11 NYCRR 65-1.1. The plaintiff started to receive claims for the individual defendant's care on or about January 6, 2016 and continued to receive claims through May 26, 2016. The plaintiff mailed its first notice for EUO to the individual defendant on February 2, 2016. The individual defendant did not attend either the first or second rescheduled EUO, and the plaintiff now seeks default judgment and summary judgment stating that it is not required to pay the no-fault benefits as the individual defendant's coverage is vitiated.
The plaintiff's motion is denied, without prejudice, against the individual defendant and the non-answering parties. 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 [1st Dept 2015]), timely move for relief (see, CPLR 308[2]; 320[a]; 3215[c]; Gerschel v Christensen, 128 AD3d 455, 457 [1st 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." Joosten v Gale, 129 AD2d 531, 535 (1st Dept 1987); see Martinez v Reiner, 104 AD3d 477 (1st Dept 2013); Beltre v Babu, 32 AD3d 722 (1st Dept 2006); Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649 (2nd 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 (1st Dept 2006). The proof submitted must establish a prima facie case. See id.; Silberstein v Presbyterian Hosp., 95 AD2d 773 (2nd Dept 1983).
The plaintiff's submissions fail to demonstrate that the initial notice for the EUO was timely mailed to the individual defendant within 15 days of its receipt of all of the applicable NF-3 forms, as required by 11 NYCRR 65-3.5(b), at least with respect to the billings on or before January 13, 2016. As such, the plaintiff has failed to establish its prima facie case with regard to each of the defendants and their respective claims. Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), in this case the plaintiff failed to supply sufficient evidence to establish compliance with the timeliness requirements of 11 NYCRR 65-3.5(b) with respect to each of the claims. The plaintiff claims to have received at least ten NF-3 forms from January 6, 2016 to May 26, 2016 and did not mail the first notice requesting an EUO until February 2, 2016. As such, there are several claims that appear to fall outside of the 15-day requirement under 11 NYCRR 65-3.5(b). As such, the plaintiff has not established a prima facie case as to all the claims or non-answering parties.
However, with respect to the two claims from New York City Health and Hospitals D/B/A Kings County Hospital Center on received on April 22, 2016 and May 26, 2016, for $870.32 and $146.83 respectively, the court finds that summary judgment is proper.
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557 [1980]), and the pleadings and other proof such as affidavits, depositions, and written admissions. See CPLR 3212. The "facts must be viewed in the light most favorable to the non-moving party." Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012) (internal quotation marks and citation omitted). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact. See id., citing Alvarez v Prospect Hosp., 68 NY2d 320 (1986).
The plaintiff's submissions demonstrated that because the initial EUO notice occurred before the plaintiff received any NF-3 submission from either of the answering defendants, there is no timeliness issue implicated under 11 NYCRR 65-3.5(b), as Pryce had already failed to report for the EUO by the time the forms were received. See Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 (1st Dept 2017); National Liability & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851, 851 (1st Dept 2015); American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 (1st Dept 2015). They also showed that Pryce did not appear for the initially scheduled EUO, and was provided timely notice of a rescheduled EUO, but failed to appear for that as well. The plaintiff consequently provided prima facie evidence that, by failing to appear, Pryce breached a condition precedent to the effectiveness of no-fault insurance coverage, thus vitiating that coverage. See Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., supra; Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 (1st Dept 2015); Allstate Ins. Co. v Pierre, 123 AD3d 618 (1st Dept 2014). The plaintiff thus provided sufficient proof of the facts constituting the claim sufficient to establish its prima facie entitlement to judgment as a matter of law on the complaint against the answering defendants. See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).
Accordingly, it is
ORDERED that the plaintiff's motion for leave to enter a default judgment against the defendants Malcolm T. Pryce (the individual defendant) and Englinton Medical, P.C., Randall Victor Ehrlich, M.D., P.C., Lenco Diagnostic Laboratories, Inc., Excel Surgery Center, LLC, 21st Century Pharmacy, Inc., Jeff Harmonize Acupuncture, P.C., Miisupply LLC, Starrett City Medical P.C., Othera Occupational Therapy, P.C., and EA Chiropractic Diagnostics, P.C. is denied without prejudice, and;
ORDERED that the plaintiff's motion for summary judgment against the answering defendant New York City Health and Hospitals D/B/A Kings County Hospital Center is granted, and it is further;
ADJUDGED and DECLARED that the plaintiff is not obligated to pay no-fault benefits to the defendant New York City Health and Hospitals D/B/A Kings County Hospital Center to reimburse them for treatment or medical equipment that they provided to Malcolm Pryce for injuries that he sustained in a motor vehicle accident that occurred on November 19, 2015; and it is further,
ORDERED that the plaintiff shall serve a copy of this Decision, Order, and Judgment upon the defendants within 30 days.
This constitutes the Decision, Order, and Judgment of the court. 9/11/2019
DATE
/s/ _________
NANCY M. BANNON, J.S.C.