American Tr. Ins. Co. v Rodriguez (2013 NY Slip Op 51630(U))

Supreme Court, New York County

109003/11

Plaintiff:

Law office of James F. Sullivan

52 Duane Street, 7th Floor

New York, New York 10007

Defendant:

Melanie B. Nolan

80 Marcus Drive

Melville, New York 11747

Jazmine L. Rodriguez – pro se

351 Chester Street, Apt. 2F

Brooklyn, New York 11212

The Rybak Law, PLLC – for Deng Acupuncture, Compas Medical, New Way Medical,

and T & J Chiropractic

1810 Voorhies Avenue, 3rd Floor

Brooklyn, New York 11235

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle accident. On January 12, 2011, defendant Jazmine L. Rodriguez (Rodriguez) was allegedly injured in the accident involving a vehicle insured by plaintiff American Transit Insurance Co. Defendant Rodriguez sought medical treatment from defendants The Brookdale Hospital Medical Center, Charles Deng Acupuncture, P.C. (Deng Acupuncture), Compas Medical, P.C. (Compas Medical), Metropolitan Diagnostic Medical Care, P.C., New Way Medical Supply, Corp. (New Way Medical), Seacoast Medical, P.C., and T & J Chiropractic, P.C. (T & J Chiropractic) (collectively the “Medical Provider Defendants”). Thereafter, defendant Rodriguez allegedly assigned her No-Fault rights to the Medical Provider Defendants. According to plaintiff, defendant Rodriguez breached and failed to comply with policy requirements set forth in the insurance policy, in that defendant Rodriguez failed to appear for an examination under oath, and, thus, plaintiff is not obligated to afford coverage.

Plaintiff now moves for a default judgment, pursuant to CPLR 3215, against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., and for summary judgment, pursuant to CPLR 3212, against defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic. Such defendants jointly oppose plaintiff’s motion for summary judgment.

DISCUSSION

Default Judgment

CPLR 3215 provides that “[w]hen a defendant has failed to appear, . . . the plaintiff may seek a default judgment against him. . . . The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.” A party moving to prevent a default judgment from being entered must demonstrate a reasonable excuse for the default and a meritorious defense to the action. CPLR C3215:24; Wehringer v Brannigan, 232 AD2d 206, 206 (1st Dep’t 1996). [*2]

Here, plaintiff’s motion for a default judgment is granted as to defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., as such defendants, to date, have failed to answer plaintiff’s complaint or appear in this action. Additionally, such defendants have not submitted any opposition to plaintiff’s motion. Defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic take no position on this portion of plaintiff’s motion.

Summary Judgment

The Court of Appeals has stated, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (citations omitted). The movant must establish prima facie entitlement to summary judgment by tender of evidentiary proof in admissible form. See Friends of Animals, Inc. v Associated Fur Mfrs.,Inc., 46 NY2d 1065, 1067-1068 (1979); Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Under the above standard, plaintiff’s motion for summary judgment is denied. In support of its motion, plaintiff proffers the affirmation of its attorney, Kaitlin Williams, which states alleged terms of the insurance policy requiring the eligible injured person to submit to examinations under oath at the reasonable request of the insurance company. However, such policy was not annexed to the affirmation, or provided in support of plaintiff’s motion. While plaintiff’s attorney’s affirmation conclusorily states certain condition precedents required by the insurance policy, which were allegedly breached by defendant Rodriguez, such affirmation does not satisfy the requirement of tender of evidentiary proof in admissible form. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d at 1067. It is well settled that a “bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. See Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep’t 1981), aff’d 54 NY2d 715 (1981). As such, plaintiff has failed to establish prima facie entitlement to summary judgment as a matter of law. Moreover, the affidavits with regards to mailing and service, attached to petitioner’s motion, do not establish, as a matter of law, the terms of the insurance policy, or that defendant Rodriguez breached such terms. Thus, plaintiff’s motion for summary judgment is denied, without prejudice to move for summary judgment within 60 days of the filing of the note of issue, upon completion of discovery.

Accordingly, it is

ORDERED that the portion of plaintiff’s motion seeking a default judgment is granted, as against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C.; plaintiff shall settle order/judgment upon notice, in accordance with 22 NYCRR 202.48, returnable to room 119A; and it is further [*3]

ORDERED that the portion of plaintiff’s motion for summary judgment is denied, without prejudice to move after the completion of disclosure in accordance with this decision/order; and it is further

ORDERED that, within thirty days of entry, provider defendants shall serve a copy of this order upon all parties, together with notice of entry; and it is further

ORDERED that documentary discovery shall be exchanged and completed within 30 days; and it is further

ORDERED that depositions of the parties to commence on or before November 25, 2013, and completed on or before December 31, 2013; and it is further

ORDERED that the parties shall appear for a compliance conference on Thursday, January 9, 2014 at 10:00 A.M., in Room 428, 60 Centre Street, New York, NY ^[FN1]

This constitutes the Decision and Order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

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Footnotes

Footnote 1: The October 17, 2013 conference is adjourned to January 9, 2014 at 10:00 A.M.