Liberty Mut. Ins. Co. v. Staples
| Decision Date | 01 March 2022 |
| Docket Number | Index 656604/2020 |
| Citation | 2022 NY Slip Op 30644 (U) |
| Court | New York Supreme Court |
| Parties | LIBERTY MUTUAL INSURANCE COMPANY, LM GENERAL INSURANCE COMPANY, Plaintiffs, v. ANETTE STAPLES, HOPELAND STAPLES, ALBERTSON PHARMACY INC, ALEXIOS APAZIDIS MD PC, ALP SUPPLY INC, ALTERNATIVE PLM ACUPUNCTURE PC, BETTER HANDS PHYSICAL THERAPY PC, BODY LOGICS REHAB PT PC, BRIDGES PSYCHOLOGICAL SERVICES PC, GLENRIDGE CHIROPRACTIC PC, INTEGRATED CHIROPRACTIC PC, METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, MKR MEDICAL PC, NEXRAY MEDICAL IMAGING PC, PEACEFUL HEALTH SUPPLIES INC, PERFORMANCE CHIROPRACTIC PC, RAINE M PESIDAS PHYSICAL THERAPY PC, RELIABLE ONE SERVICES INC, RENAN MACIAS, S&M PHARMACY INC Defendants. MOTION SEQ. No. 001 |
DECISION + ORDER ON MOTION
NANCY M. BANNON JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37 38, 39, 40, 41, 42, 43, 44 were read on this motion to/for DEFAULT JUDGMENT .
In this declaratory judgment action, the plaintiffs move pursuant to CPLR 3215 for leave to enter a default judgment against Anette Staples, Hopeland Staples (the individual defendants) Albertson Pharmacy Inc, ALP Supply Inc, Better Hands Physical Therapy PC, Bridges Psychological Services PC, Integrated Chiropractic P, MKR Medical PC, Nexray Medical Imaging PC, Peaceful Health Supplies Inc, Raine M Pesidas Physical Therapy, and S&M Pharmacy Inc (collectively, the non-answering medical provider defendants). The plaintiffs seek a declaration that they are not obligated to pay no-fault benefits under policy number AOS22800417870, claim number 0414456190002, in connection with injuries that the individual defendants allegedly sustained in a November 23, 2019 motor vehicle accident, or to reimburse the non-answering medical provider defendants for treatment they rendered or equipment and supplies they provided to him for his alleged injuries. The ground alleged is that the individual defendants failed to appear for duly scheduled Examinations Under Oath (EUOs). The plaintiff also moves to permanently stay any arbitrations or court hearings brought by the defendants for no-fault benefits stemming from the alleged November 23, 2019 accident involving the individual defendants. Defendant Bridges Psychological Services PC opposes the motion and cross-moves pursuant to CPLR 3012(d) to compel the acceptance of its late answer. No other defendant opposes the motion. The motion and cross-motion are denied.
As an initial matter, the court notes that the plaintiffs discontinued the action as against defendants Renan Macias MD, Alexios Apazidis MD PC, and Performance Chiropractic PC by stipulations dated February 4, 2021, April 28, 2021, and May 12, 2021, respectively.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215[f]; Allstate Ins. Co. v. Austin, 48 A.D.3d 720, 720 [2nd Dept. 2008])." Atlantic Cas. Ins. Co. v. RJNJ Services, Inc., 89 A.D.3d 649 (2nd Dept. 2011). ]." Joosten v. Gale, 129 A.D.2d 531, 535 (1st Dept. 1987); see Martinez v. Reiner, 104 A.D.3d 477 (1st Dept. 2013); Beltre v. Babu, 32 A.D.3d 722 (1st Dept. 2006); Atlantic Cas. Ins. Co. v. RJNJ Services, Inc., supra. While the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered." Guzetti v. City of New York, 32 A.D.3d 234, 236 (1st Dept. 2006).
In support of their motion, the plaintiffs submit, inter alia, the pleadings, proof of service, an attorney's affirmation, the individual defendants' NF-2 forms, both dated December 16, 2019, and at least one NF-3 form. Notably absent from these submissions are the dates upon which the plaintiffs received these forms. Although counsel, in his affirmation, states the dates upon which certain forms were received, his affirmation is without probative value or evidentiary significance on this motion since counsel claims no personal knowledge of the relevant underlying facts. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Trawally v. East Clarke Realty Corp., 92 A.D.3d 471 (1st Dept. 2012); Thelen LLP v. Omni Contracting Co. Inc., 79 A.D.3d 605 (1st Dept. 2010). Although the plaintiffs also submit the affidavits of Dawn Smith and Karen Kuitwaard, employees of the plaintiffs, neither states the dates upon which the relevant NF-2 and NF-3 forms were received. As discussed below, this is fatal to the plaintiffs' motion.
The plaintiffs additionally submit the first EUO notices both dated February 7, 2020, scheduling EUOs for February 28, 2020, subsequent EUO notices both dated March 5, 2020, scheduling EUOs for March 24, 2020, and additional EUO notices dated April 1, 2020 scheduling EUOs for April 21, 2020, May 27, 2020, scheduling EUOs for June 15, 2020, and June 17, 2020, scheduling EUOs for July 9, 2020, as well as statements on the record made on some the dates and times the individual defendant was scheduled to appear, which indicate that the individual defendants failed to appear. The plaintiffs also submit an affidavit of their attorney, who was present for the scheduled July 15, 2020, and July 9, 2020 EUOs, at which he states the individual defendants failed to appear. The plaintiffs also submit the NF-10 denial form, which indicates that the claims were denied due to the violation of policy conditions. The denial form states, in pertinent part, that the individual defendants failed to appear for EUOs and that the failure to do so, i.e., comply with conditions of the policy, prevented the plaintiff from obtaining proper proof of the claim.
The plaintiffs' motion must be denied as they failed to submit proof establishing that they complied with the timeliness requirements of 11 NYCRR 65-3.5. The plaintiffs do not establish that the initial notices for EUOs were timely mailed to the individual defendants within 15 days of the receipt of relevant claim forms, such as NF-2 or NF-3 forms, as required by 11 NYCRR 65-3.5(b). Hertz Vehicles, LLC v. Best Touch PT, P.C., 162 A.D.3d 617 (1st Dept. 2018); Kemper Independence Ins. Co. v. Adelaida Physical Therapy, P.C., 147 A.D.3d 437 (1st Dept. 2017); Am. Transit Ins. Co. v. Longevity Med. Supply, Inc., 131 A.D.3d 841 (1st Dept. 2015) (citing Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559 [1st Dept. 2011]).
Although the plaintiffs do establish that the EUO notices were generated and that the individual defendant did not appear on either date, the plaintiffs fail to demonstrate that the scheduling of the EUOs complied with 11 NYCRR 65-3.5(b) and thus the plaintiffs do not establish a prima facie case. Kemper Independence Ins. Co., supra; Am. Transit Ins. Co.; supra; Unitrin Advantage Ins. Co., supra. Thus, even assuming the plaintiffs submitted proof of service of the summons and complaint and proof of the defendants' default, they failed to submit sufficient proof of the facts constituting the claim. See CPLR 3215(f).
The court turns to the cross-motion of defendant Bridges Psychological Services PC...
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