Unitrin Direct Ins. Co. v. Olympia Care, PT, P.C.

Full title: UNITRIN DIRECT INSURANCE COMPANY, Plaintiff, v. OLYMPIA CARE, PT, P.C.…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11

Date published: Feb 18, 2015

2015 N.Y. Slip Op. 30300 (N.Y. Sup. Ct. 2015)

Opinion

INDEX NO. 158485/12

02-18-2015

UNITRIN DIRECT INSURANCE COMPANY, Plaintiff, v. OLYMPIA CARE, PT, P.C., STAR MEDICAL & DIAGNOSTIC, PLLC, DST MEDICAL, P.C., PACIFIC SURGICAL SUPPLY, INC., BROMER MEDICAL, P.C., ANIKO ACUPUNCTURE, P.C. MOVE FREE CHIROPRACTIC, P.C., NEW CENTURY MEDICAL DIAGNOSTICS, P.C., DST MEDICAL, P.C., UNIVERSAL REHAB PT, P.C., COVE CHIROPRACTIC, P.C., CHARLES S. DAVIS, M.D., ARNICA ACUPUNCTURE, P.C., FIVE BORO PSYCHOLOGICAL AND LICENSED MASTER SOCIAL WORK SERVICES, PLLC, SHARP VIEW DIAGNOSTIC IMAGING, P.C., MONIQUE HARDIE, NATHANIEL BARRETT, HOPETON CLARKE and MED EQUIPMENT SERVICE, INC., Defendants.

JOAN A. MADDEN, J.

In this action for declaratory relief as to no-fault insurance coverage, plaintiff Unitrin Direct Insurance Company ("Unitrin") moves for an order pursuant to CPLR 3212 granting summary judgment against defendant Five Boro Psychological and Licensed Master Social Work Services, PLLC ("Five Boro") (motion sequence no. 003).¹ Five Boro opposes the motion.² In a separate motion, which is unopposed, plaintiff moves for a default judgment against defendant Med Equipment Service, Inc. (motion sequence no. 004). The motions arc consolidated for determination herein.

1 Plaintiff has advised the court that it is withdrawing the portion of its motion seeking an award of sanctions against Five Boro.

2 By order and judgment dated December 16, 2013, this court granted plaintiff's prior motion for a default judgment against the defaulting defendants, OLYMPIA CARE, PT, P.C., STAR MEDICAL & DIAGNOSTIC, PLLC, DST MEDICAL, P.C., PACIFIC SURGICAL SUPPLY, INC., ANIKO ACUPUNCTURE, P.C., MOVE FREE CHIROPRACTIC, P.C., NEW CENTURY MEDICAL DIAGNOSTICS, P.C., UNIVERSAL REHAB PT, P.C., COVE CHIROPRACTIC, P.C., ARNICA ACUPUNCTURE, P.C., and NATHANIEL BARRETT. As noted in that order, plaintiff advised that it had settled and discontinued the action as against defendant BROMER MEDICAL P.C. and that defendants CHARLES S. DAVIS, M.D., MONIQUE HARDIE and HOPELON CLARKE could not be located. On March 31, 2014, plaintiff filed a stipulation of discontinuance as against defendant SHARP VIEW DIAGNOSTIC IMAGING, P.C.

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, by submitting evidentiary proof in admissible form sufficient to establish the absence of any material issues of fact. See CPLR 3212 [b]; Winearad v. New York University Medical Center, 64 NY2d 851, 853 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Meridian Management Corp v. Cristi Cleaning Service Corp, 70 AD3d 508, 510 (1^st Dept 2010). Once such showing is made, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212 (b); see Zuckerman v. City of New York, supra at 562.

Plaintiff has established prima facie entitlement to judgment as a matter of law against Five Boro. In support of the motion plaintiff submits an affirmation of attorney Aaron F. Fishbein; an affirmation of attorney Harlan R. Schreiber; an affidavit of plaintiff's claims representative Denise Winat; the pleadings; the police accident report listing Hardee's address on her driver's license as 997 E179th St, Bronx. NY and the address on her vehicle registration as 2951 W33rd St., Brooklyn, NY; this court's December 16, 2013 order and judgment granting plaintiff's prior motion for a default judgment; plaintiff's March 31, 2014 stipulation discontinuing the action as against defendant Sharp View Diagnostic Imaging, P.C.; a Sealed Indictment from the United States District Court Southern District of New York; a document entitled, "General Release for Five Boro Psychological and Licensed Master Social Work Services PLLC by Vladimir Grinberg" dated June 28, 2013 (the "Release"); a letter dated April 20, 2011, from plaintiff's attorney addressed to defendant Monique Hardie scheduling an examinations under oath (EUO) for May 6, 2011, and copied to her attorney Boyko & Associates, P.C.; an affidavit of mailing as to that letter; a letter dated April 20, 2012, from plaintiff's attorney addressed to defendant Hopeton Clarke scheduling an EUO for May 6, 2011; an affidavit of mailing as to that letter; a letter dated April 20, 2011 from plaintiff's attorney addressed to defendant Nathaniel Barrett scheduling an EUO for May 6, 2011, and copied to his attorney Boyko & Associates, P.C.; an affidavit of mailing as to that letter; a letter dated May 2, 2011, from plaintiff's attorney addressed to Boyko & Associates, P.C. and copied to Hardie and Barrett, rescheduling the EUOs Hardie and Barrett to May 17, 2011, as per their attorney's request; an affidavit of the mailing of that letter to Boyko & Associates, Hardie and Barrett; letters dated May 24, 2011 from plaintiff's counsel addressed to Boyko & Associates, P.C., and copies to Hardie and Barrett, advising that Hardie and Barrett did not appear for the EUOs on May 17, 2011, and scheduling an EUO for June 7, 2011; affidavits of the mailing of those letters to Boyko & Associates, Hardie and Barrett; a May 12, 2011 letter from plaintiff's attorney to defendant Clarke advising she did not appear for the EUO on May 6, 2011 and scheduling an EUO for May 26, 2011; an affidavit of mailing as to that letter; plaintiff's Denial of Claim Form denying the claims submitted by Hardie for the services provided by Five Boro based on Hardie's failure to appear for an EUO on May 17, 2011 and June 7, 2011; Five Boro's Verification of Treatment forms for the services provided to Hardee, listing her address at 2951 W33 St., Brooklyn, NY; and Hardee's Assignment of Benefits Form listing her address as 2951 W 33St, Brooklyn, NY.

The foregoing affidavits and documents are sufficient to establish that EUO scheduling letters were mailed to defendant Hardie, and she failed to appear on the two scheduled dates. The failure to appear for an EUO is a violation of a condition precedent to coverage that vitiates the policy. See Insurance Department Regulation 11 NYCRR §65-1.1; Hertz Corp v. Active Care Medical Supply Corp, ___AD3d ___, 2015 WL 59095 (1^st Dept 2015); Allstate Insurance Co v. Pierre, 123 AD3d 618 (1sst Dept 2014); IDS Property Casualty Insurance Co v. Stracar Medical Services. PC, 116 AD3d 1005 (2^nd Dept 2014); Interboro Insurance Co v. Clennon, 113 AD3d 596 (2^nd Dept 2014); Unitrin Advantage Insurance Co v. Bayshore Physical Therapy. PLLC, 82 AD3d 559 (1^st Dept), lv app den 17 NY3d 705 (2011). Since it is undisputed that Hardie did not appear for the scheduled EUO on two occasions, plaintiff has a right to deny her claims, based on breach of a condition precedent to coverage. See Hertz Corp v. Active Care Medical Supply Corp, supra; Allstate Insurance Co v. Pierre, supra; Unitrin Advantage Insurance Co v. Bayshore Physical Therapy. PLLC, supra.

Plaintiff therefore has met its burden on the motion and the burden shifts to Five Boro to raise a triable issue of material fact. In opposing the motion, Five Boro does not dispute that Hardie failed to appear for an EUO on the two scheduled dates, or that neither she nor her attorney objected to the EUO requests. Rather, Five Boro argues, inter alia, that: 1) the EUO letters were not mailed to Hardee's proper address since the police report lists her address as 997 East 179^th St, Bronx NY; 2) plaintiff has not established "any good reason" for its EUO requests; 3) plaintiff's attorney must be disqualified as plaintiff needs the attorney to testify as to Hardee's non-appearance at the EUO; 4) discovery is needed; and 5) the default of Five Boro's assignors does not affect Five Boro's rights in this action.

Five Boro's arguments are without merit. In the absence of evidentiary proof that Hardie or her attorney objected to plaintiff's EUO scheduling letters when they received them in 2011, Five Boro will not now be heard to object that no reasonable basis existed for the EUO requests. See Natural Therapy Acupuncture, PC v. State Farm Mutual Automobile Insurance Co, 42 Misc3d 137(A) (App Term 2^nd Dept 2014); Canarsi Chiropractic PC v. State Farm Mutual Automobile Insurance Co, 40 Misc3d 140(A) (App Term 2^nd Dept 2013); Flatlands Medical. PC v. State Farm Mutual Automobile Insurance Co, 38 Misc3d 135(A) (App Term 2^nd Dept 2013); Viviane Etienne Medical Care, PC v. State Farm Mutual Automobile Insurance Co, 35 Misc3d 127(A) (App Term 2^nd Dept 2011); Crescent Radiology PLLC v. American Transit Insurance Co, 31 Misc3d 134 (A) (App Term 2^nd Dept 2011).

Five Boro objects that the EUO letters were not sent to Hardie at the address listed on the police accident report, 997 W 179^th St, Bronx, NY. As noted above, the police accident report lists two different addresses for Hardie: a Bronx address from her driver's license and a Brooklyn address from her vehicle registration. The EUO scheduling letters were mailed to Hardie at the Brooklyn address, which is the same address listed on Five Boro's verfication forms and Hardee's assignment of benefits form. The record also shows that Hardie's EUO letters were copied or addressed, and mailed to the attorney representing both Hardie and Barrett, and that the attorney received the letters scheduling the first EUOs for May 6, 2011, since he requested that plaintiff reschedule the May 6 date. Plaintiff submits competent proof as to the mailings of the EUO letters, by providing affidavits of mailing from the individual who personally mailed each letter.

Five Boro argues that plaintiff's attorney must be disqualified, since plaintiff relies on the affirmation of its attorney to establish Hardie's non-appearance for an EUO. Even assuming without deciding that plaintiff's attorney is a "witness" within the meaning of the disciplinary rules, disqualification is not warranted where as here the attorney's purported testimony relates solely to an uncontested issue. See 22 NYCRR 1200.00 Rule 3.7(a)(1); Twin Securities, Inc v. Advocate & Lichtenstein, LLP, 97 AD3d 500 (1^st Dept 2012). As noted above. Five Boro does not dispute that Hardie failed to appear for the EUOs scheduled for May 17 and June 7, 2011.

Five Boro objects that summary judgment is premature, since discovery is needed. The absence of discovery, however, does not require denial of plaintiff's motion, as Five Boro fails to show that facts essential to oppose the motion are in plaintiff's exclusive knowledge, or that discovery might lead to facts relevant to a viable defense. See Woods v. 126 Riverside Drive Corp, 64 AD3d 422, 423 (1^st Dept 2009), lv app den 14 NY3d 704 (2010); Duane Morris LLP v. Astor Holdings, Inc., 61 AD3d 418 (1^st Dept 2009); Bank of America, N.A. v. Tatham, supra.

The court has considered the balance of Five Boro's arguments, and finds that they are likewise lacking in merit. Thus, since Five Boro has failed to raise a material issue of fact as to its non-appearance for an EUO, plaintiff is entitled to a judgment declaring that it is not obligated to pay Five Boro's claims for no-fault benefits.

In view of this conclusion, and plaintiff's withdrawal of the portion of its motion for the imposition of sanctions against Five Boro, the court need address any issue pertaining to the release in the federal court criminal action against Vladimir Grinberg.

Also, since the court's records do not show that plaintiff has served defendants Charles S. Davis, M.D., Monique Hardie and Hopeton Clarke, the complaint is dismissed without prejudice as against those defendants.

Finally, plaintiff's motion for a default judgment against defendant Med Equipment Service, Inc., is granted in the absence of opposition.

Accordingly, it is

ORDERED that the branch plaintiff's motion (motion seq. no. 003) for summary judgment against Five Boro Psychological and Licensed Master Social Work Services, PLLC is granted; and it is further

ORDERED that plaintiff has withdrawn the branch of its motion for the imposition of sanctions against defendant Five Boro; and it is further

ORDERED that plaintiff's motion (motion seq. no. 004) for a default judgment against Med Equipment Service, Inc., is granted in the absence of opposition; and it is further

ORDERED, ADJUDGED AND DECLARED that plaintiff Unitrin Direct Insurance Company owes no duty to defendant Five Boro Psychological and Licensed Master Social Work Services, PLLC and defendant Med Equipment Service, Inc. to pay No-Fault claims with respect with respect to the January 6, 2011 collision involving claim number 2011003510; and it is further

ORDERED, ADJUDGED AND DECLARED that any arbitrations brought by defendant Five Boro Psychological and Licensed Master Social Work Services, PLLC or defendant Med Equipment Service, Inc. relating to the January 6, 2011 collision involving claim number 2011003510, are permanently stayed; and it is further

ORDERED that the complaint is dismissed without prejudice as against defendants Charles S. Davis, M.D., Monique Hardie and Hopeton Clarke. DATED: February 18 2015

ENTER:

/s/_________

J.S.C.