Opinion
107907/2010.
April 14, 2011.
DECISION AND ORDER
Plaintiff seeks a judgment declaring that plaintiff owes no duty to compensate defendants pursuant to New York Insurance Law § 5103 for expenses incurred from a collision October 20, 2009, in Queens County, between a motor vehicle owned by plaintiff and operated by defendant Massie, in which defendant Lewis was a passenger, and another motor vehicle. Plaintiff moves for a default judgment against defendants. C.P.L.R. § 3215(e). Although plaintiff served the summons and complaint on the corporate defendants July 16, 2010, mailed them the required second copies, C.P.L.R. § 3215(g)(4), and served the summons and complaint on defendant Lewis July 17, 2010, and on defendant Massie July 24, 2010, defendants failed to answer.
While plaintiff and the individual defendants did not execute any contract between them, a statutory duty obligates plaintiff to compensate the individual defendants for expenses due to a motor vehicle collision. N.Y. Ins. Law § 5103(a); 11 N.Y.C.R.R. § 65-2.2(a);M.N. Diagnostics, P.C. v. New York Tr. Auth., 82 A.D.3d 409, 410 (1st Dep't 2011). Plaintiff's witness attests that the corporate defendants submitted claims for medical diagnostic and treatment expenses due to the October 2009 collision, as assignees of the individual defendants' statutory rights to compensation. See Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 N.Y.3d 556, 563 (2008); Hospital for Joint Diseases v. Travelers Prop, Cas. Ins. Co., 9 N.Y.3d 312, 317 (2007). As assignees, these defendants may claim compensation only to the extent that the assignor individual defendants are entitled to compensation. Matter of International Ribbon Mills, 36 N.Y.2d 121, 126 (1975); Madison Liquidity Invs. 119, LLC v. Griffith, 57 A.D.3d 438, 440 (1st Dep't 2008);Condren, Walker Co. v. Portnoy, 48 A.D.3d 331 (1st Dep't 2008); Trisingh Enters. v. Kessler, 249 A.D.2d 45, 46 (1st Dep't 1998).
Plaintiff's witness also attests that plaintiff notified the individual defendants of requested examinations under oath, substantiated by the notices themselves, and that these defendants did not appear for the examinations. These defendants' noncooperation constitutes a failure of a condition precedent to compensation for the motor vehicle collision to any parties potentially entitled to compensation under Insurance Law § 5103(a) or their assignees. N.Y. Ins. Law § 5103(a); 11 N.Y.C.R.R. § 65-2.4(c)(2).See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560 (1st Dep't 2011); Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 721 (2d Dep't 2006).
Consequently, the court grants plaintiff's motion for a default judgment against all defendants. C.P.L.R. § 3215; American Tr. Ins. Co. v. Wilfred, 296 A.D.2d 360, 361 (1st Dep't 2002);Utica First Ins. Co. v. Santagata, 66 A.D.3d 876, 878 (2d Dep't 2009); Lancer Ins. Co. v. Whitfield, 61 A.D.3d 724, 725 (2d Dep't 2009); Travelers Indem. Co. of Am. v. Pullini Water Servs., Inc., 35 A.D.3d 846, 847 (2d Dep't 2006). The court adjudges and declares that plaintiff is not obligated to compensate defendants for expenses related to the collision October 20, 2009. C.P.L.R. § 3001; American Tr. Ins. Co. v. Wilfred, 296 A.D.2d at 361-62; Travelers Indem, Co. of Am. v. Pullini Water Servs., Inc., 35 A.D.3d at 846-47. See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d at 560. This decision constitutes the court's order and judgment.