Opinion
Index 155471/2020
10-29-2021
HEREFORD INSURANCE COMPANY, Plaintiff, v. BEST EMPIRE MEDICAL, P.C., GRAHAM WELLNESS -MEDICAL P.C.JIANG ACUPUNCTURE, P.C.KETAN VORA DO, P.C., LONGEVITY MEDICAL SUPPLY, INC., NEW MILLENNIUM IMAGING, P.C.NEW YORK PT CARE, P.C.JOSUE ALMONTE, ASTACIO RAFAEL Defendant. Motion Seq. No. 001
HON. WILLIAM PERRY, JUSTICE.
Unpublished Opinion
MOTION DATE: 10/14/2021
DECISION + ORDER ON MOTION
HON. WILLIAM PERRY, JUSTICE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28 were read on this motion to/for JUDGMENT - DEFAULT.
In this action, Plaintiff Hereford Insurance Company seeks a declaratory judgment that it owes no duty to pay the claims of Defendants Best Empire Medical PC, Jiang Acupuncture PC, Ketan Voran Do PC, New Millennium Imaging PC, and New York PT Care PC (hereinafter "medical provider defendants") for services allegedly provided to individual Defendants Josue Almonte and Rafael Astacio ("Claimants") following a July 3, 2019 motor vehicle accident, on the grounds that Plaintiff has a founded belief that the services provided were not causally related to the accident or were noncovered events under the policy.
In motion sequence 001, Plaintiff moves for a default judgment against all Defendants, except Graham Wellness Medical PC (NYSCEF Doc No. 27, stipulation of discontinuance) and Longevity Medical Supply, which has appeared and filed an answer. (NYSCEF Doc No. 12.) The motion is submitted unopposed.
Background
Plaintiff was the insurer for a taxicab in which the Claimants were riding on July 3, 2019. The police report states that the accident occurred when a motorcycle (identified as vehicle 1) struck the passenger side mirror of vehicle 2 and then hit the taxicab (vehicle 3) from behind. (NYSCEF Doc No. 19, Police Report.) At some point after the accident, Plaintiff alleges that the Claimants alleged to have sustained significant bodily injuries and sought coverage pursuant to the policy provided by Plaintiff to the taxicab. (NYSCEF Doc No. 1, Complaint, at 5.)
Claimants appeared for examinations under oath ("EUOs") taken on November 25, 2019. (NYSCEF Doc No. 20, at 1-54 [Astacio Transcript]; and 55-138 [Almonte Transcript].) In support of the current motion, Plaintiffs founded belief is based primarily on Claimants' "questionable testimony" provided during the EUOs. (NYSCEF Doc No. 17, Pl.'s Memo at ¶ 11 •)
Pages 138 through 192 of NYSCEF Doc No. 20 are a second copy of the Astacio Transcript.
Discussion
On a motion for leave to enter a default judgment, "the applicant shall file proof of service . of the summons and the complaint... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party[.]" (CPLR 3215 [f]; see also SMROFII2012-1 Tr. v Telia, 139 A.D.3d 599 [1st Dept 2016].) "Given that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists." (Bianchi v Empire City Subway Co., 2016 WL 1083912 [Sup Ct, NY County 2016], quoting. Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003].)
Here, Plaintiff alleges that service was properly made upon the medical provider defendants by service upon the New York Secretary of State. (NYSCEF Doc No. 22, Affidavits, at 1 [Ketan Vora Do], 2 [Jiang Acupuncture], 4, [New York PT Care], 5 [New Millennium Imaging]); upon Almonte by personal service (id, at 7); upon Best Empire Medical by service on Dr. Sonia Armengol (id. at 8); and upon "Astasio" [sic] by affix-and-mail service (id. at 9).
First, the court finds that service upon Astacio was improper. The affidavit of service indicates that the server affixed the summons and complaint to the door at 57 Beaver Street #2, Brooklyn, NY, but there is no indication of whether that address was Astacio's actual place of business, dwelling place, of usual place of abode. (Id. at 9.) Although the affidavit indicates that the server mailed a copy of the service to the same address, Astacio's alleged "last known residence," it also states that an additional copy was mailed to 30 Avenue D, #10G, New York, NY 10009, which, the court notes, is strikingly similar to the address which Plaintiff alleged was • Astacio's address in the summons: 30 Avenue D, #10C, New York, NY 10009. (Complaint at 2 [emphasis added].) Plaintiff thereafter mailed a notice of default to the 30 Avenue D # 10C address, not the #10G address. (NYSCEF Doc No. 23.) Further, Astacio provided an address of 370 Bushwick Avenue, #L0C, Brooklyn, NY 11206 at his November 25, 2019 EUO, when he testified that he lived with Almonte, his son-in-law. (Astacio Transcript at 29:24 [emphasis added].)
Further, Plaintiff fails to demonstrate that it was entitled to resort to affix-and-mail service under CPLR 308[4], which requires a showing of "due diligence" to complete service pursuant to CPLR 308[1] or [2]. (County of Nassau v Letosky, 34 A.D.3d 414, 415 [2d Dept 2006].) The process server indicated that he attempted to personally serve Astacio on five weekdays, "8/24/2020 - 8/27/2020, 9/4/2020," but failed to specify what time of day he attempted such service, and as such there is no indication that service was made at a time when an individual would likely be at home. (See Wood v Balick, 197 A.D.2d 438, 439 [1st Dept 1993].) Also, the affidavit indicates that the affixing was completed on September 3, 2020 but that a further attempt of personal service was then inexplicably attempted the next day, on September 4, 2020.
Second, service upon Best Empire Medical PC ("Best Empire") was also improper. This affidavit states that service on Best Empire was effectuated by serving Dr. Sonia Armengol by leaving a copy of the summons and complaint at her residence with "Doorman Johnathan." (Affidavits at 8.) "This is insufficient to effect service upon a corporation ... [as] plaintiff failed to show that the doorman was ... [an] agent authorized by appointment or by law to receive service' on behalf of the corporation." (White v Landau, 31 Misc.3d 1243 [A], at *4 [Sup Ct, NY County 2011] [internal citation omitted]; see also CPLR 311 [a][l].)
Third, service upon the remaining medical provider defendants was also improper. While Plaintiff alleges that service upon Defendants Ketan Vora Do PC, Jiang Acupuncture PC, New York PT Care PC, and New Millennium Imaging PC (Affidavits at 1, 2, 4, and 5) was proper pursuant to Business Corporation Law § 306, Plaintiff fails to demonstrate compliance with CPLR 3215[g][4][i], which requires the submission of an affidavit indicating that "an additional service of the summons by first class mail has been made upon the defendant corporation[s] at [their] last known address[es]." (CPLR 3215[g][4]i] [emphasis added]; see also Celestial Seven, LLC v Copper Branch Checker, LLC, 2021 WL 4755907, at *1 [Sup Ct, NY County, Oct 5, 2021] [denying motion for default due to failure to serve the additional notice by first class mail].)
Thus, the court finds that service was proper only as upon Almonte, who was personally served at 370 Bushwick Avenue #10C, Brooklyn, NY 11206 (the same address also affiliated with Astacio). (Affidavits at 7.) To date, Almonte has failed to appear.
While a defendant in default is deemed to have admitted all traversable allegations in the complaint (see Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70 [2003]; Browny Rosedale Nurseries, Inc., 259 A.D.2d 256 [ 1 st Dept 1999]), "CPLR § 3215 does not contemplate that default judgments are to be rubberstamped once jurisdiction and a failure to appear has 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" (Feffer v Malpeso, 210 A.D.2d 60, 60 [1st Dept 1994]. As such, a movant must submit an affidavit of the facts that does more than just make conclusory allegations (Peacock v Kalikow, 239 A.D.2d 188, 190 ), it must state sufficient factual allegations to enable the Court to determine that a viable cause of action exists (Woodson, supra at 70-72).(Hall v Holland Contracting Corp., 2011 WL 11061091, at * 1 [Sup Ct, Bronx County 2011].)
"Proof that the plaintiff has submitted 'enough facts to enable [the] court to determine that a viable' cause of action exists may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by complaint verified by the plaintiff that sufficiently details the facts and the basis for the defendant's liability." (Perney v Medical One New York, PC, 2020 WL 4604812, at *4 [Sup Ct, NY County 2020] [internal citations omitted].)
"An insurer '[m]ay assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.'" (American Transit Ins. Co. v. Anesthesia, 2020 WL 6081956, at *1 [Sup Ct, NY County 2020], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199 [1997].) "In meeting this burden, a no-fault insurer is 'not required to establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including scienter, by clear and convincing evidence.'" (State Farm Fire and Cas. Co. v All County, LLC, 2019 WL 5788060, at *3 [Sup Ct, NY County 2019], quoting V.S. Med. Servs.. P.C v Allstate Ins. Co., 25 Misc.3d 39, 41 [App Term, 2d Dept 2009].) "Rather, the no-fault insurer must demonstrate the facts elicited during an investigation that make up the founded belief and [circumstantial evidence is sufficient if a defendant's conduct may be reasonably inferred based upon logical inferences to be drawn from the evidence." (Kemper Independence Ins. Co. v Caban Massage Therapy P.C., 2019 WL 6343512, at *2 [Sup Ct, NY County 2019] [citations omitted].)
Here, Plaintiff alleges that it initially sought EUOs of the Claimants based on the following factors:
- The police report indicated the collision was minor in nature and that ALMONTE did not complain of injuries at the scene.
- The EMS report listed ALMONTE as a pedestrian.
- The Claimants were receiving extensive and mirrored medical treatment at the same facility, even though the collision appeared minor collision [sic] where the motorcycle took the brunt of any impact.(Pl.'s Memo at ¶ 9.) Plaintiff further alleges that the EUOs produced the following questionable testimony entitling it to deny all claims relating to the accident:
- The Claimants acknowledged that they were rear-ended by a motorcycle and that the damage to the insured vehicle was so light that they were able to conclude their cab ride.
- The motorcyclist, despite the collision, was able to give the police a statement.
- ASTACIO originally refused medical treatment at the scene and the driver of the insured vehicle was totally uninjured.'
- The Claimants waited for nearly a week to seek clinical treatment and they went to a clinic that was referred to them by an attorney they consulted from a 1-800 number.
- Their description of treatment was inconsistent with the billing received by Hereford.(Id. at ¶ 11.) As additional support, Plaintiff submits the affidavit of one of its senior no-fault claims adjusters. (NYSCEF Doc No. 18.)
However, Plaintiff fails to sufficiently establish the facts constituting the claim. Contrary to Plaintiffs assertions, the police report clearly states on its face that Almonte: was a passenger in the taxicab and not a pedestrian (compare Police Report at 1 with Pl.'s Memo at ¶ 9) and was injured in the accident (compare Police Report at 2 with Pl.'s Memo at ¶ 9). Almonte also testified that he received medical treatment at the scene. (Compare Almonte Trans at 19:22-19:25 with Pl.'s Memo at f 9.) The police report also does not indicate "that the Claimants were not visibly injured" (Pl.'s Memo at ¶ 4) or that "the collision was minor in nature" (id. at ¶ 9). Lastly, Almonte testified that he was taken to the hospital in an ambulance, while Astacio testified that he concluded his cab ride home. (Compare Almonte Trans at 20:02-21:04 and Astacio Trans at 35:02-35:09 with Pl.'s Memo at ¶ 11 ["damage to the insured vehicle was so light that [the Claimants] were able to conclude their cab ride"].)
Further, contrary to the allegations, the Claimants did not testify as to the damage to the insured vehicle being light, whether the motorcyclist gave the police a statement or whether the taxicab driver was totally uninjured. (See generally Transcripts.) Nor is there any indication that the Claimants' "description of treatment was inconsistent with the billing received by Hereford," and said billing was never submitted to the court. (Pl.'s Memo at ¶ 11.)
To the extent that Plaintiff alleges that it disclaimed coverage because the "minor collision" did not warrant the alleged "extensive" treatment received by Claimants (Pl.'s Memo at ¶ 9), Plaintiff fails to demonstrate compliance with the "pertinent Insurance Law time notification requirements and might suffer a preclusion remedy for violations." (Fair Price Medical Supply Corp. v Travelers Indem. Co., 42 A.D.3d 277, 282 [2d Dept 2007], quoting Chubb, 90 N.Y.2d at 202 [finding that disclaimer based on medical treatments being "excessive" was founded on separate legal basis than disclaimer based on noncovered event and as such required showing of compliance with insurance regulations].) Here, the court is unable to determine such compliance.
On this record, Plaintiff fails to state "sufficient factual allegations to enable the Court to determine that a viable cause of action exists" (Woodson, 100 NY2D at 70) and the circumstantial evidence is insufficient, as the Claimants' alleged conduct may not be "reasonably inferred based upon logical inferences to be drawn from the evidence." (Kemper Independence Ins. Co., 2019 WL 6343512, at *2.) Thus, it is hereby
ORDERED that Plaintiffs motion sequence 001 for default judgment is denied.