Opinion
12705N Index No. 160260/17 Case No. 2018-5951
12-22-2020
PV HOLDING CORP., et al., Plaintiffs–Appellants, v. AB QUALITY HEALTH SUPPLY CORP., et al., Defendants, Atlas Radiology, P.C., et al., Defendants–Respondents.
Rubin, Fiorella, Friedmand & Mercante, LLP, New York (Vitaly Vilenchik of counsel), for appellants.
Rubin, Fiorella, Friedmand & Mercante, LLP, New York (Vitaly Vilenchik of counsel), for appellants.
Friedman, J.P., Renwick, Singh, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 15, 2018, which denied plaintiff's motion for default judgment against defendants Atlas Radiology, P.C. (Atlas), Hank Ross Medical, P.C. (Hank Ross), Quality Custom Medical Supply, Inc. (Quality Custom), and Kenneth Cole (together, the defaulting defendants), unanimously reversed, on the law, with costs, and default judgment awarded to plaintiff. The Clerk is directed to enter judgment accordingly.
A plaintiff moving for a default judgment based upon a defendant's failure to appear must submit proof of service of the summons and complaint and proof of the facts constituting the claim ( CPLR 3215[f] ). Plaintiff has established that the defaulting defendants have failed to answer the complaint or to otherwise appear. While declaratory judgment will rarely, if ever, be granted solely on default, plaintiff has sufficiently established the facts of its claim ( Tanenbaum v. Allstate Ins. Co., 66 A.D.2d 683, 684, 411 N.Y.S.2d 29 [1st Dept. 1978] ).
As this Court has explained, the failure of a person eligible for no-fault benefits to appear for a "properly noticed" Examination Under Oath (EUO) on two separate occasions constitutes a breach of a condition precedent and will vitiate coverage ( Kemper Independence Ins. Co. v. Adelaida Phys. Therapy, P.C., 147 A.D.3d 437, 438, 46 N.Y.S.3d 579 [1st Dept. 2017], citing Hertz Corp. v. Active Care Med. Supply Corp., 124 A.D.3d 411, 1 N.Y.S.3d 43 [1st Dept. 2015] ). This coverage defense will apply to "any claims," and is not determined on a bill by bill basis (see e.g. Hertz Vehicles, LLC v. Alluri, 171 A.D.3d 432, 95 N.Y.S.3d 523 [1st Dept. 2019] ).
The record evidence supports plaintiff's contention that the EUOs were "properly noticed" ( Kemper, 147 A.D.3d at 438, 46 N.Y.S.3d 579 ). A plaintiff is entitled to request an EUO, and may timely do so, prior to its receipt of a claim form ( Mapfre Ins. Co. of N.Y. v. Manoo, 140 A.D.3d 468, 469–470, 33 N.Y.S.3d 54 [1st Dept. 2016], lv granted 28 N.Y.3d 1131, 46 N.Y.S.3d 835, 69 N.E.3d 622 [2017], appeal dismissed 29 N.Y.3d 995, 57 N.Y.S.3d 716, 80 N.E.3d 409 [2017] ; see also Hertz, 171 A.D.3d at 432, 95 N.Y.S.3d 523 ). The notification requirements for verification requests found in 11 NYCRR 65–3.5 and 65–3.6 "do not apply to EUOs that are scheduled prior to the insurance company's receipt of a claim form" ( Mapfre Ins. Co., 140 A.D.3d at 469–470, 33 N.Y.S.3d 54 ). Here, the verified complaint, affidavit, affirmations, and documentary evidence establish that the EUOs were "scheduled prior to the insurance company's receipt of a claim form" ( id. ).
In opposition to plaintiff's motion for default judgment, defendants were required to "demonstrate a reasonable excuse for the default and a meritorious defense," and to support their assertions through the submission of an affidavit ( Morrison Cohen LLP v. Fink, 81 A.D.3d 467, 468, 917 N.Y.S.2d 155 [1st Dept. 2011] ). Given defendants' failure to oppose the motion before the IAS court, there can be no question that they failed to raise a factual issue.