Kemper Indep. Ins. v. Easy Care Acupuncture

Full title: KEMPER INDEPENDENCE INSURANCE COMPANY, Plaintiff (s), v. EASY CARE…

Court: Supreme Court of the State of New York, New York County

Date published: Dec 21, 2010

2010 N.Y. Slip Op. 33508 (N.Y. Sup. Ct. 2010)

Opinion

107180-10.

December 21, 2010.

DDECISION/ ORDER

JUDITH J. GISCHE, Judge.

Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):

Papers Numbered

Pltf's n/m (3215) w/JE affirm, DP affid, exhs w/AOS. . . . . . . . . . . 1 Upon the foregoing papers, the decision and order of the court is as follows:

This is an action by plaintiff, Kemper Insurance Company ("Kemper"), for a judgment declaring that Kemper owes no duty to pay any of the No-Fault claims filed by the defendants in connection with a collision that took place on October 1, 2009 ("accident"). None of the defendants in this action have answered the complaint or appeared and their time to do so has expired and not been extended by the court. Kemper has filed proof of service on each corporate defendant. Each was served through the Secretary of State. Diligent attempts were made to personally serve each of the individually named defendants ("Pryce" and "Morrow"). Since the attempts were unsuccessful, Kemper served Pryce and Morrow by affixing a copy of the summons and verified complaint on June 22, 2010. Service was complete with the mailing of these legal papers on June 24, 2010.

Kemper has complied with the additional notice requirements of CPLR 3215 and BCL 306 by sending copies of the summons and complaint to each defendant by mail and to the Secretary of State. This motion for entry of a default judgment is itself additional notice of this action against the defendants. Despite such notice and additional notice, this motion is submitted to the court unopposed.

A default in answering the complaint is deemed to be an admission of all factual allegations contained in the complaint and all reasonable inferences that flow from them (Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62). Therefore, Kemper is entitled to the relief sought in its verified complaint which seeks declaratory relief and a stay of all arbitration proceedings, lawsuits or other proceedings arising from these claims based upon the following facts:

Pryce and Morrow were occupants of a car insured by Kemper on the date of the accident. Morrow is Kemper's insured. Kemper has received medical claims for these individuals in excess of $25,000. The treatment for Pryce and Morrow is virtually identical and it also appears to be inconsistent with the type of accident that occurred.

Although Kemper notified Pryce and Morrow they had to appear for a physical examination, as required under the insurance contract Morrow has with Kemper, neither of them appeared. Kemper has provided proof that Pryce and Morrow were each notified of these appointments.

Kemper has asserted four causes of action. They are for a declaration that: Kemper owes no duty to the defendants or claimants to pay their No-Fault claims (1^st COA), the medical defendants have no right to recover No-Fault claims with respect to the accident (2^nd COA), that defendants Easy Care Acupuncture, P.C., Active Chiropractic, P.C., KO Medical, P.C., Hillside Open MRI, P.C., YME Psychological, P.C., and MIY Medical Care, P.C. have no standing to recover No-Fault claims with respect to the accident (3^rd COA), and temporary stay on all No-Fault lawsuits, etc., pending the outcome of this action (4^th COA).

Kemper's motion is decided as follows:

It is hereby

ORDERED that plaintiff Kemper's motion for entry of a default judgment on its 1^st and 2^nd causes of action against each of the named defendants is GRANTED on default; and it is further

ORDERED ADJUDGED AND DECLARED that plaintiff Kemper owes no duty to the defendants to pay No-Fault claims to the defendants with respect to the October 1, 2009 collision under policy number VF911284 and claim number 331A6472915; and it is further

ORDERED that plaintiff Kemper's motion for entry of a default judgment on its 4^th cause of action which is for a temporary stay of any arbitrations, or other proceedings related to or arising from the October 1, 2009 collision under policy number VF911284 and claim number 331A6472915 pending the outcome of this action is moot since Kemper has obtained a default judgment against each of the defendants and this action is now completed; and it is further

ORDERED that plaintiff's motion for a declaration on its 3^rd cause of action, that defendants Easy Care Acupuncture, P.C., Active Chiropractic, P.C., KO Medical, P.C., Hillside Open MRI, P.C., YME Psychological, P.C., and MIY Medical Care, P.C. lack standing to recover No-Fault benefits with respect to the October 1, 2009 collision is denied and that claim is hereby severed and dismissed without prejudice since this claim is not supported by any facts; and it is further

ORDERED that this constitutes the decision, order and Judgment of the court.