Opinion
16057 Index No. 160264/19 Case No. 2021–03534
05-31-2022
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff–Appellant, v. AXIAL CHIROPRACTIC, P.C. et al., Defendants–Respondents.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.
Acosta, P.J., Renwick, Singh, Moulton, Kennedy, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 31, 2021, which denied plaintiff insurer's motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants (all defendants other than Axial Chiropractic, PC, Central Supplies of NY, Corp., Direct RX Pharmacy, Inc., LR Medical, PLLC, Nova Medical Diagnostic, PC, and NYRX Pharmacy, Inc.), unanimously reversed, on the law, without costs, the motion granted and it is so declared.
This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile accident that occurred on October 25, 2018. As to the first and second causes of action seeking a declaration of noncoverage because the accident was not a covered event, as it was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215[f] ; State Farm Mut. Auto. Ins. Co. v. Surgicore of Jersey City, LLC, 195 A.D.3d 454, 455, 149 N.Y.S.3d 68 [1st Dept. 2021] ). The claim representative's affidavit and the additional evidence submitted, including an affidavit of the driver of the other car involved in the accident and dash-cam footage from that car, adequately set forth the factual basis for plaintiff's belief that the crash was not a covered event. These submissions were sufficient to determine that a viable declaratory judgment cause of action of non-coverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ; Surgicore, 195 A.D.3d at 455, 149 N.Y.S.3d 68 ). In light of the foregoing, plaintiff was also entitled to a default judgment on its fifth cause of action seeking a declaration that it is not obligated to defend defendants Tason Cohen, Tatiana Richards, and Richardeer Mordaunt in connection with any claims arising out of the October 25, 2018 collision (see Matter of Liberty Mut. Ins. Co. v. Goddard, 29 A.D.3d 698, 699, 815 N.Y.S.2d 650 [2d Dept. 2006] ).
Concerning the third cause of action, plaintiff established that defendants Cohen, Andre Hinds, and Janelle McNeil, who assigned claims for no-fault benefits to the defendants medical service providers, and defendant Richards, the owner of the vehicle, failed to appear for properly noticed examinations under oath. Their failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see Surgicore, 195 A.D.3d at 455–456, 149 N.Y.S.3d 68 ; Unitrin Advantage Ins. Co. v. Dowd, 194 A.D.3d 507, 508, 143 N.Y.S.3d 543 [1st Dept. 2021] ).