American Tr. Ins. Co. v Graves (2022 NY Slip Op 51273(U))

Index No. 159039/2021

Law Office of Daniel J. Tucker, Brooklyn, NY (Megan Harris of counsel), for plaintiff.

Law Offices of Dominick W. Lavelle, Locust Valley, NY (Emily K. Lavelle of counsel), for defendant Shawarbi Graves.

No appearances for remaining defendants.

In this no-fault-insurance-coverage action, plaintiff, American Transit Insurance Company, moves for default judgment against the eligible injured person, defendant Shawarbi Graves, and a number of medical-provider assignees of defendant Graves. Plaintiff’s motion is denied as to defendants Graves, Dr. Ronald P. Mazza, Nassau Health Care Corp., and Nassau University Medical Center; and granted as to [*2]defendants Hector Melgar, PT P.C., Orthopro, Services, Inc., Prompt Medical Spine Care, PLLC, and Stand-Up MRI of Carle Place, P.C.^[FN1]

To obtain default judgment under CPLR 3215, a plaintiff must establish proper service on the defendant, the defendant’s default, and the facts constituting plaintiff’s claims. American Transit cannot show proper service on Graves, Mazza, Nassau Health Care, or Nassau University Medical Center.

American Transit commenced this action on October 1, 2021. (NYSCEF No. 1.) American Transit therefore was required to serve defendants within 120 days from that day. (See CPLR 306-b.) The 120th day of the period, January 29, 2022, was a Saturday, making American Transit’s deadline January 31. (See General Construction Law § 25-a.) But American Transit’s affidavits of service reflect that it did not serve Mazza, Nassau Health Care, and Nassau University Medical Center until February 4, 2022. (See NYSCEF No. 4 at 3, 5, 7 [affidavits of service].) And American Transit did not serve Graves until February 22, 2022.^[FN2] (NYSCEF No. 4 at 1.)

The length of these delays in service is not significant. But American Transit did not, then or later, seek additional time to serve these four defendants. Nor do American Transit’s papers on the current motion address this issue. (See NYSCEF No. 11 [affirmation of counsel].) This court may not sua sponte dismiss American Transit’s claim against these four defendants for untimely service (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345, 345 [2d Dept 2006]); but absent proper service, no basis exists to grant default judgment against them, either.^[FN3]

The other defendants (Melgar, Orthopro, Prompt Medical, and Stand-Up MRI), were each timely served in December 2021. (See NYSCEF No. 3.) None of these defendants have answered or sought additional time to answer. And American Transit has provided the facts constituting its claims against these defendants. American Transit’s motion papers establish for default-judgment purposes that it timely requested and scheduled an independent medical examination, as required by 11 NYCRR 65-3.5; and that Graves twice failed without good cause to appear for the duly scheduled examinations. (See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011].)

Accordingly, it is

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against Melgar, Orthopro, Prompt Medical, and Stand-Up MRI is granted without opposition, and American Transit is directed to settle order with respect to judgment against those defendants; and it is [*3]further

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against Graves, Mazza, Nassau Health Care, and Nassau University Medical Center is denied; and it is further

ORDERED that if American Transit does not bring a renewed motion for default judgment against defendants Mazza, Nassau Health Care, and Nassau University Medical Center within 30 days of entry of this order, the action will be dismissed as against those defendants.

Footnotes

Footnote 1:Plaintiff settled its claims against the remaining defendant, Advanced Orthopaedics, P.L.LC. (NYSCEF No. 29), and does not seek relief against it on this motion.

Footnote 2:American Transit served Graves by leave-and-mail under CPLR 308 (2), on February 19, 2022, and February 22, 2022, respectively. (See NYSCEF No. 4 at 1.)

Footnote 3:In any event, American Transit has not properly established that Graves defaulted. Given leave-and-mail service, Graves’s time to appear and respond expired 40 days from the filing of the affidavit of service, which occurred here on June 15, 2022. (See NYSCEF No. 4; CPLR 308 [2]; CPLR 320 [a].) Graves’s deadline to appear and respond, therefore, was July 25, 2022. Graves filed an answer on July 26, 2022. (NYSCEF No. 8.) Although that answer was one day late, American Transit did not serve a notice of rejection; nor separately argue in its default-judgment motion—filed on August 7, 2022—that Graves’s answer was late. As a result, American Transit waived Graves’s one-day default. (See U.S. Bank N.A. v Lopez, 192 AD3d 849, 850 [2d Dept 2021].) For that matter, even absent waiver, this court would be inclined to grant Graves a retroactive one-day enlargement of time under CPLR 2004, were that enlargement requested.