February 6, 2018

Unitrin Advantage Ins. Co. v 21st Century Pharm. (2018 NY Slip Op 00813)

Headnote

The court considered a motion for a default judgment against certain defendants by the Unitrin Advantage Insurance Company on its first and/or second causes of action for a declaratory judgment. The main issue decided was whether the plaintiff was entitled to a default judgment against the defaulting defendants. The holding of the court was that the plaintiff had established its entitlement to a default judgment against the defaulting defendants, except for one defendant for whom there was no affidavit of nonmilitary service in the record. The court granted the motion as to numerous defendants and declared that they had no right to no-fault benefits from the plaintiff with respect to a September 19, 2014 motor vehicle accident. The decision was unanimously modified to grant the plaintiff's motion in part and deny it in part, and the Clerk was directed to enter judgment accordingly.

Reported in New York Official Reports at Unitrin Advantage Ins. Co. v 21st Century Pharm. (2018 NY Slip Op 00813)

Unitrin Advantage Ins. Co. v 21st Century Pharm.

2018 NY Slip Op 00813 [158 AD3d 450]

February 6, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 28, 2018

[*1]

Unitrin Advantage Insurance Company, Appellant,
v
21st Century Pharmacy, Also Known as 21st Century Pharmacy Inc., et al., Respondents.

Rubin, Fiorella & Friedman LLP, New York (Aaron F. Fishbein of counsel), for appellant.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment against certain defendants (defaulting defendants) on its first and/or second causes of action for a declaratory judgment, unanimously modified, on the law and the facts, to grant the motion as to defendants 21st Century Pharmacy a/k/a 21st Century Pharmacy Inc.; Advanced Orthopedics and Joint Preservation P.C.; Angelic Physical Therapy P.C.; BMJ Chiropractic, P.C.; Coney Island Medical Practice a/k/a Coney Island Medical Practice Plan, P.C.; Dana Woolfson LMT; Electrophysiologic Medical Diagnostics, P.C.; Excel Surgery Center, L.L.C.; Franklin Hospital; GC Chiropractic P.C.; Hamza Physical Therapy PLLC; LLJ Therapeutic Services, P.T. P.C.; Master Cheng Acupuncture P.C.; Metropolitan Medical & Surgical P.C.; Noel Blackman Physician, P.C.; North Shore LIJ Health System a/k/a North Shore LIJ Medical PC; Ortho-Med Equip Inc.; Patchogue Open MRI, P.C. d/b/a Southwest Radiology; Quality Health Family Medical Care a/k/a Quality Health Family Medical Care P.C.; Quality Medical & Surgical Supplies, L.L.C. a/k/a Quality Medical Surgical Supplies LLC; Ralph Innovative Medical, P.C.; RM Physical Therapy, P.C.; Total Psychiatric Medical Services, P.C.; Megastar Medical, P.C.; Michele Glispy, LAC; Layne Negrin, LMT; Ruby Galope, PT; and Patrick Masson, and to declare that such defendants have no right to no-fault benefits from plaintiff with respect to a September 19, 2014 motor vehicle accident, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiff established its entitlement to a default judgment against the defaulting defendants (see CPLR 3215 [f]) except for defendant Anio Pierriseme, for whom no affidavit of nonmilitary service appears in the record (see Avgush v De La Cruz, 30 Misc 3d 133[A], 2011 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:16). Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.