American Tr. Ins. Co. v Miranda (2013 NY Slip Op 52277(U))

Supreme Court, New York County

101885/12

Appearances:

Attorneys Plaintiff: Jason Tenenbaum, P.C.

595 Stewart Avenue Suite 400

Garden City, NY 11530

Tele. No. (516) 750-0595

Attorneys Defendant: Hilda Miranda, Pro Se

3438 110th Street Apt. A

Corona, NY 11368

Tele. No. (None Listed)

Louis B. York, J.

The following papers, numbered 1 towere read on this motion for Default Jgmt.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ____________________________

Answering Affidavits — Exhibits ________________________________________________________ [*2]

Replying Affidavits ___________________________________________________________________

Cross-Motion:[ ] Yes[ ] No

This is a motion seeking a declaratory judgment on default against defendants Miranda, Elmhurst United Medical, P.C., Grand Medical Supply, Inc., McKay, New York Hospital of Queens, NYHMCQ Surgery, Quality Psychological Services, P.C., and Diagnostic Medicine, P.C. and against appearing defendants Flushing Hospital and Medical Center, Kath Medical, P.C., and Shara Acupuncture, P.C. A judgment is granted against all of the defendants stating that they are not entitled to No-Fault benefits because of the failure of defendant Hilda Miranda to attend IMES.

Hilda Miranda was allegedly involved in an automobile accident on December 8, 2008, and asserted a claim to plaintiff American Transit Insurance Company. Plaintiff sought services from the defendants and assigned her No-fault benefits to them. The plaintiff insurance company scheduled two IMES with Ms. Miranda. She defaulted in appearing at both and, therefore, plaintiff denied all of the defendants’ claims. (Copies of the scheduling letters and denial of benefits are contained in Exhibit 3 of the Order to Show Cause.

The defendants, through the affirmation of their attorney, have sought to defeat plaintiff’s arguments on a number of spurious grounds, including that this motion is premature as it deprives defendants of the ability to gather information to defeat this motion, that plaintiff failed to prove that it sent letters to Miranda and that defendant Miranda failed to appear at the two scheduled IMES, and that the plaintiff disclaimed too late.

To defeat a motion for summary judgment, defendant must come forward with legally admissible evidence (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Mehlman v Montifiore, 98 Ad2d 107, 946 NYS2d 27 [1st Dept 2012]).

Defendants produced no legal evidence challenging plaintiff’s evidence. Defendants’ attorney, who had no first-hand knowledge of anything merely attempted to unsuccessfully poke holes in plaintiff’s proof. In order to obtain depositions to obtain information to defeat summary judgment, they must set forth specifically the information they seek, not merely that they need further discovery without asserting anything more.

A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.

(Bailey v New York City Transit Authority, 270 AD2d 156, 157, 704 NYS2d 502 [1st Dept 2000]). [*3]

As to the letters that were challenged as lacking proof that they existed and were mailed, copies of those letters were annexed as exhibits to plaintiff’s moving papers and the manager of plaintiff’s mail room testified as to the procedure for mailing letters and packages. Defendant also asserted a number of decisions holding that a late declining of coverage will not uphold such a rejection. However, this is not the law in the First Department where, as here, the assignor has failed to appear at designated IMES, a condition precedent to the formation of the policy (Unitron Advantage Ins. Co. v Bayshore Physical, 82 AD3d 559, 918 NYS2d 473 [1st Dept 2011]). Such a void contract cannot be assigned, even if the insurer fails to reject a claim at a later time than the statute prescribed 30-day period (Central General Hospital v Chubb, 90 NY2d 195, 659 NYS 2d 246 [1997]). The principles of Unitron and Chubb continue to be followed in recent cases in the First Department, See, eg., Praetorian Ins. Co. v Johnson, 2012 WL2143766 [Sup Ct NY County 2013]).

Accordingly, summary judgment is awarded against the answering defendants and default judgments are awarded against the non-appearing defendants.

Neither defendant Miranda nor any of her assignees may recover from the insurer American Transit Insurance Company for the accident that occurred on December 8, 2008.

Settle Declaratory Judgment awarded against the defaulting and appearing defendants.

Dated: December 12, 2013Enter:

_______________________

Louis B. York, J.S.C.

Check one:FINAL DISPOSITIONNON-FINAL DISPOSITION