Opinion
Index No. 154174/2022 Motion Seq. No. 001
01-06-2023
UNITRIN SAFEGUARD INSURANCE COMPANY, Plaintiff, v. EDSON ETIENNE, FABRICE BELOT, ALL CITY FAMILY HEALTHCARE CENTER, INC.,ALTERNATIVE PLM ACUPUNCTURE, P.C., AMA SUPPLY, INC.,BNT - AMS CORP, COMMUNITY MEDICAL CARE OF NEW YORK, P.C.,CVAP MEDICAL, P.C., DIRECT MEDICAL CARE, P.C., EAST COAST MED GROUP, INC., EMMONS AVENUE MEDICAL OFFICE, P.C.,GALAXY RX, INC., HEALTH QUEST PHARMACY, INC., HEALTHCARE HORIZONS MEDICAL, P.C., HERSCHEL KOTKES, MD, P.C., HILLSIDE PHYSICAL THERAPY, P.C., INTERVENTIONAL PHYSICAL MEDICINE AND REHAB OF NEW YORK, PLLC, JTK CHIROPRACTIC CARE, P.C., LAKE SHORE CHIROPRACTIC, P.C., LENCO DIAGNOSTIC LABORATORIES, INC., MACINTOSH MEDICAL, P.C., MDCA PSYCHOLOGY CARE, P.C., MJG MEDICAL SERVICES, P.C., NEXRAY MEDICAL IMAGING, P.C., NU AGE MED SOLUTIONS, INC., PAK HONG SIK, MD MEDICAL CARE, P.C., PROMPT DIRECT SUPPLY CORP, PROMPT RECOVERY MED, INC., RN SUPPLY, INC., SANFORD R. WERT, MD, P.C., SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, SHEILA SOMAN, MD, SINAI DIAGNOSTIC, LLC, SKY RADIOLOGY, P.C., SP ONE SERVICES, INC., TRI- BOROUGH NY MEDICAL PRACTICE, P.C., WISE REHAB PT, P.C. Defendant.
Unpublished Opinion
MOTION DATE 10/14/2022
DECISION + ORDER ON MOTION
LORI S. SATTLER JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 65, 69, 70 were read on this motion to/for JUDGMENT - DEFAULT.
In this action seeking declaratory judgment, plaintiff Unitrin Safeguard Insurance Company ("Unitrin") moves for default judgment pursuant to CPLR 3215 against the following defendants: BNT - AMS Corp; CVAP Medical, P.C.; Direct Medical Care, P.C.; East Coast Med Group, Inc.; Emmons Avenue Medical Office, P.C.; Galaxy RX, Inc.; Health Quest Pharmacy, Inc.; Healthcare Horizons Medical, P.C.; Herschel Kotkes, MD, P.C.; Hillside Physical Therapy, P.C.; Interventional Physical Medicine and Rehab of New York, PLLC; Lake Shore Chiropractic, P.C.; Lenco Diagnostic Laboratories, Inc.; Macintosh Medical, P.C.; MJG Medical Services, P.C.; Nexray Medical Imaging, P.C.; RN Supply, Inc.; Sanford R. Wert, MD, P.C.; Sedation Vacation Periop Med, PLLC; Sheila Soman, MD; Sinai Diagnostic, LLC; Sky Radiology, P.C.; SP One Services, Inc.; Edson Etienne; and Fabrice Belot. These defendants (collectively "Non-Answering Defendants") have not appeared in the action or opposed the motion.
Defendants All City Family Healthcare Center Inc; Community Medical Care of New York, P.C.; JTK Chiropractic Care, P.C.; MDCA Psychology Care, PC; Nu Age Med Solutions, Inc.; and Prompt Recovery Med, Inc. answered the Complaint prior to the filing of this motion. Unitrin has discontinued the action as against Tri-Borough NY Medical Practice, P.C. and Wise Rehab PT, P.C. Unitrin has withdrawn the motion with respect to defendants AMA Supply, Inc.; Alternative PLM Acupuncture, P.C.; Pak Hong Sik, MD Medical Care, P.C.; and Prompt Direct Supply Corp, who interposed their respective answers after this motion was filed.
On January 26, 2021, a Unitrin-insured vehicle ("Insured Vehicle") driven by defendant Fabrice Belot ("Belot") was allegedly involved in a collision in Nassau County. Edson Etienne ("Etienne") was in the passenger seat. According to the police report, the accident occurred when the Insured Vehicle attempted to illegally pass between a legally parked vehicle and another vehicle on Elmont Road. The Insured Vehicle left the scene of the collision, and no injuries were reported by any of the individuals at the scene. Belot and Etienne ("Claimants") subsequently alleged significant bodily injuries and purportedly began receiving treatment from the remaining defendants ("Medical Provider Defendants"). The Medical Provider Defendants began submitting claims to Unitrin for the treatment allegedly rendered to Claimants.
Unitrin found these claims questionable and exercised its rights under the No-Fault regulations to request examinations under oath ("EUOs") of Claimants to determine the legitimacy of the loss and necessity of any alleged treatment. Claimants appeared at their respective EUOs. However, Unitrin found their testimony questionable, namely the wide extent of Claimants' alleged injuries despite the apparently low impact of the collision, the fact that neither Claimant requested medical attention at the scene of the accident, their near-identical courses of elaborate treatment without understanding of what the treatments entailed, their receipt of psychological treatment absent indication, and their receipt of extensive durable medical equipment that they appeared not to use. Following each Claimant's EUO, Unitrin forwarded copies of their EUO transcripts for execution; neither Claimant did so.
Unitrin commenced this action on May 13, 2022 seeking a declaratory judgment to disclaim No-Fault coverage arising out of the January 26, 2021 collision. It now moves for default judgment against the Non-Answering Defendants on its causes of action for founded belief that the accident was not a covered incident and for Claimants' violation of a condition precedent to No Fault coverage for failure to subscribe to and return their respective EUO transcripts.
A party is entitled to default judgment pursuant to CPLR 3215 where it files proof of service of its Summons and Complaint, proof of the facts constituting its claim, and proof of default (CPLR 3215[f]; Gantt v North Shore-LIJ Health Sys., 140 A.D.3d 418 [1st Dept 2016]). Here, Unitrin has properly filed its proof of service of the Summons and Complaint on the Non Answering Defendants and proof of the Non-Answering Defendants' default. Unitrin also submits documents containing facts in support of its founded belief and failure to subscribe claims.
An insurer may assert a lack of coverage defense based on the fact or founded belief that a claimant's alleged injury did not arise out of a covered incident (Cent. Gen. Hosp. v Chubb Group of Ins. Cos., 90 N.Y.2d 195, 201 [1997]). In demonstrating the facts supporting its founded belief, an insurer may present circumstantial evidence to prove such facts, provided that a reasonable inference can be drawn from them (Benzaken v Verizon Communications, Inc., 21 A.D.3d 864, 865 [2d Dept 2005], quoting Staples v Sisson, 274 A.D.2d 779, 781 [3d Dept 2000]). A defaulting defendant is deemed to have admitted the allegations in a plaintiff's complaint by its failure to answer (State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, 195 A.D.3d 454, 455 [1st Dept 2021]).
Here, Unitrin does not present sufficient facts supporting its founded belief. Both Claimants testified that the force of the collision was heavy, and Belot estimated that the Insured Vehicle was travelling at approximately 25 miles per hour (NYSCEF Doc. No. 54 at 20; NYSCEF Doc. No. 55 at 20). This is inconsistent with the conclusory and self-serving assertion of Unitrin's claim adjuster that the collision was "low impact in nature" and therefore inconsistent with Claimant's "wide-ranging injuries" (NYSCEF Doc. No. 57 ¶ 21). Both Claimants further testified that they began experiencing pain in their knees and shoulders at a later time, not immediately after the accident (NYSCEF Doc. No. 54 at 23; NYSCEF Doc. No. 55 at 24), which is consistent with their lack of requests for medical treatment at the scene of the collision. Unitrin does not offer any facts indicating why the treatment Claimants testified about amounted to mere "boilerplate No-Fault treatment" (NYSCEF Doc. No. 57). The Court therefore denies summary judgment on Unitrin's first cause of action for founded belief.
11 NYCRR 65-1.1 requires that a No-Fault claimant fully comply with the terms of coverage in a No-Fault policy as a condition precedent to all claims against an insurer under that policy. A claimant's failure to subscribe to and return an EUO transcript constitutes a breach of a condition precedent to coverage under the applicable No-Fault regulations and warrants denial of claims submitted pursuant to a policy regulated thereunder (Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 A.D.3d 468 [1st Dept 2020]; Hereford Ins. Co. v Forest Hills Med., P.C., 172 A.D.3d 567, 568 [1st Dept 2019]). Here, Unitrin demonstrates that Claimants failed to subscribe to and return their respective EUO transcripts (NYSCEF Doc. Nos. 54-56). The Court finds that Claimants breached a condition precedent to No-Fault coverage and accordingly grants the branch of Unitrin's motion for default judgment on its third cause of action.
Accordingly, it is hereby:
ORDERED that the motion is granted in part and denied in part; and it is further
ORDERED that Unitrin's motion for default judgment based on founded belief is denied; and it is further
ORDERED that the Unitrin's motion for default judgment based on breach of a condition precedent to No-Fault coverage is granted against defendants BNT - AMS Corp; CVAP Medical, P.C.; Direct Medical Care, P.C.; East Coast Med Group, Inc.; Emmons Avenue Medical Office, P.C.; Galaxy RX, Inc.; Health Quest Pharmacy, Inc.; Healthcare Horizons Medical, P.C.; Herschel Kotkes, MD, P.C.; Hillside Physical Therapy, P.C.; Interventional Physical Medicine and Rehab of New York, PLLC; Lake Shore Chiropractic, P.C.; Lenco Diagnostic Laboratories, Inc.; Macintosh Medical, P.C.; MJG Medical Services, P.C.; Nexray Medical Imaging, P.C.; RN Supply, Inc.; Sanford R. Wert, MD, P.C.; Sedation Vacation Periop Med, PLLC; Sheila Soman, MD; Sinai Diagnostic, LLC; Sky Radiology, P.C.; SP One Services, Inc.; Edson Etienne; and Fabrice Belot; and it is further
ORDERED, ADJUDGED, and DECLARED that Unitrin owes no duty to provide NoFault reimbursements to defendants BNT - AMS Corp; CVAP Medical, P.C.; Direct Medical Care, P.C.; East Coast Med Group, Inc.; Emmons Avenue Medical Office, P.C.; Galaxy RX, Inc.; Health Quest Pharmacy, Inc.; Healthcare Horizons Medical, P.C.; Herschel Kotkes, MD, P.C.; Hillside Physical Therapy, P.C.; Interventional Physical Medicine and Rehab of New York, PLLC; Lake Shore Chiropractic, P.C.; Lenco Diagnostic Laboratories, Inc.; Macintosh Medical, P.C.; MJG Medical Services, P.C.; Nexray Medical Imaging, P.C.; RN Supply, Inc.; Sanford R. Wert, MD, P.C.; Sedation Vacation Periop Med, PLLC; Sheila Soman, MD; Sinai Diagnostic, LLC; Sky Radiology, P.C.; SP One Services, Inc.; Edson Etienne; and Fabrice Belot, in connection with the alleged incident of January 26, 2021 (Unitrin claim number 2100037885); and it is further
ORDERED that the Clerk is directed to enter judgment as against defendants BNT -AMS Corp; CVAP Medical, P.C.; Direct Medical Care, P.C.; East Coast Med Group, Inc.; Emmons Avenue Medical Office, P.C.; Galaxy RX, Inc.; Health Quest Pharmacy, Inc.; Healthcare Horizons Medical, P.C.; Herschel Kotkes, MD, P.C.; Hillside Physical Therapy, P.C.; Interventional Physical Medicine and Rehab of New York, PLLC; Lake Shore Chiropractic, P.C.; Lenco Diagnostic Laboratories, Inc.; Macintosh Medical, P.C.; MJG Medical Services, P.C.; Nexray Medical Imaging, P.C.; RN Supply, Inc.; Sanford R. Wert, MD, P.C.; Sedation Vacation Periop Med, PLLC; Sheila Soman, MD; Sinai Diagnostic, LLC; Sky Radiology, P.C.; SP One Services, Inc.; Edson Etienne; and Fabrice Belot; and it is further
ORDERED that the balance of the action is severed and shall proceed against the remaining defendants.