Hereford Ins. Co. v. A to Z Supply Servs., Inc.

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Hereford Ins. Co. v A to Z Supply Servs., Inc. 2024 NY Slip Op 33545(U) October 7, 2024 Supreme Court, New York County Docket Number: Index No. 153731/2022 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 153731/2022 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 10/07/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 153731/2022 HEREFORD INSURANCE COMPANY, MOTION DATE 09/22/2024 Plaintiff, MOTION SEQ. NO. 004 - V -

A TO Z SUPPLY SERVICES, INC.,AUTUMN PT PC,CITIMED SURGERY CENTER, LLC,EMED PHARMACY CORP., EMOTE MEDICAL SERVICES, PC,EMUNA INC.,FRANKLIN SQUARE SERVICES, INC.,HEAL TH NEXUS, INC.,IMOVE PHYSICAL THERAPY, PC,INTERVENTIONAL PHYSICAL MEDICINE & REHAB MEDICINE OF NEW YORK PLLC,KNAPP ORTHO DECISION + ORDER ON SERVICES, INC.,MARK H VINE, NY UNION PHARMACY, INC.,OLUBUSOLA BRIMMO, REFUAH DIAGNOSTIC MOTION LLC,SEDATION VACATION PERIOPERATIVE MEDICINE, PLLC,TRI-BOROUGH NY MEDICAL PRACTICE, PC,UNISOFT LLC,WELLNESS MEDICAL IMAGING, PC,WIZARD COMPUTER SERVICES, INC.,DARIUS COVINGTON, LEONA STOKES, ORLANDO COVINGTON,

Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 115, 116, 117, 118, 119, 120, 122, 123 were read on this motion to/for JUDGMENT - DEFAULT

Upon the foregoing documents, plaintiffs motion for a default judgment is granted, in

part, to the extent set forth below.

Plaintiff commenced this action on April 29, 2022, seeking a declaratory judgment that it

is not obligated to pay no-fault benefits for any medical treatment defendants Darius Covington,

Orlando Covington and Leona Stokes received for injuries allegedly sustained in a motor vehicle

collision on November 15, 2021 (NYSCEF Doc. No. 1 [Complaint at ,J26]). Plaintiff now moves,

without opposition, for a default judgment against defendants: Caplet Pharmacy Inc; Downtown

Brooklyn PT, PC; Future Care Registered Professional Nursing PLLC d/b/a Future Care Internal

153731/2022 HEREFORD INSURANCE COMPANY vs. A TO Z SUPPLY SERVICES, INC. ET AL Page 1 of 5 Motion No. 004

INDEX NO. 153731/2022 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 10/07/2024

ORDERED that plaintiffs motion for a default judgment as against defendants Glenmore

Medical, PC, and Macintosh Medical, PC, is denied, as moot; and it is further

ORDERED that plaintiffs motion for a default judgment as against Samir Zaqdan a/k/a

Samir Mohamed Hanafy Zadqan DPT; Future Care Registered Professional Nursing PLLC d/b/a

Future Care Internal Medicine; and Caplet Pharmacy Inc. is denied; and it is further

ORDERED that plaintiffs motion for default judgment as to Downtown Brooklyn PT,

PC, All Health DME Inc; Bingo Supplies Inc., Fontto Supply Services Inc, Hunt Supply Inc,

Lincoln Diagnostics, Lit Chemists Corp., Open Acupuncture, PC, Rehab Concepts Physical

Therapy PC, and Vargas RX Corp d/b/a 14th St Pharmacy is granted; and it is further

ORDERED, ADJUDGED, and DECLARED that plaintiff has no duty to pay any no-

fault benefits in the form of sums, monies, damages, awards or benefits to defendants Downtown

Brooklyn PT, PC, All Health DME Inc; Bingo Supplies Inc., Fontto Supply Services Inc, Hunt

Supply Inc, Lincoln Diagnostics, Lit Chemists Corp., Open Acupuncture, PC, Rehab Concepts

Physical Therapy PC, and Vargas RX Corp d/b/a 14th St Pharmacy, including but not limited to all

no fault claims any and all uninsured, underinsured, supplementary-uninsured, or supplementary

underinsured motorist-benefit claims; any and all medical-payment claims; any and all property

damage claims; and any and all bodily injury-liability benefits under the Policy arising from the

November 15, 2021 collision under claim number 95932; and it is further

ORDERED that the action is severed and shall proceed as to the remaining defendants;

and it is further

ORDERED that within twenty days after the date of this decision and order, plaintiff shall

serve a copy of this order, with notice of entry, upon all defendants, as well as the County Clerk

(60 Centre Street, Room 141B), who re directed to enter judgment accordingly, and it is further

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INDEX NO. 153731/2022 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 10/07/2024

ORDERED that such service upon the Clerk of the Court shall be made in accordance

with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for

Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address

www.nycourts.govisupctmanh).

This constitutes the decision, order, and judgment of this Court.

10/7/2024 DATE HON. JUDY H. KIM, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

153731/2022 HEREFORD INSURANCE COMPANY vs. A TO Z SUPPLY SERVICES, INC. ET AL Page 5 of 5 Motion No. 004

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Footnotes

[1] of 5 [* 1] Medicine; All Health Dme Inc; Bingo Supplies Inc; Fontto Supply Services Inc; Glenmore Medical, PC; Hunt Supply Inc; Lincoln Diagnostics; Lit Chemists Corp; Macintosh Medical, PC; Open Acupuncture, PC; Rehab Concepts Physical Therapy PC; Samir Zaqdan a/k/a Samir Mohamed Hanafy Zaqdan DPT; and Vargas Rx Corp d/b/a 14th St Pharmacy (collectively, the "Defaulting Defendants"). Plaintiff argues that the motion should be granted because it has established that defendant Leona Stokes breached a condition precedent to coverage by failing to appear for several duly scheduled independent medical examinations and defendants Darius Covington and Orlando Covington failed to subscribe their examinations under oath ("EUO") transcripts, another condition precedent to coverage (Id. at ,J,J24, 33). DISCUSSION In order to establish a default judgment pursuant to CPLR 3215, plaintiff must submit proof of: (1) service of the summons and complaint; (2) the facts constituting the claim; and (3) defendants' default in answering or appearing (See Gordon Law Firm, P.C. v Premier DNA Corp.,

[205] AD3d 416,416 [1st Dept 2022]). Where service of process has been effected through the New York Secretary of State, CPLR 3215(g)(4) further mandates that plaintiff must also submit an affidavit of service documenting an additional service of the summons to defendant's last known address by first-class mail (See e.g., Sterk-Kirch v Uptown Communications & Elec. Inc., 124 AD3d 413,414 [1st Dept 2015]). The motion is denied as to defendants Glenmore Medical, PC, and Macintosh Medical, PC, as this action has been discontinued against them by stipulation (See NYSCEF Doc. No. 121, 125). The motion is also denied as to defendants Samir Zaqdan a/k/a Samir Mohamed Hanafy Zadqan DPT and Future Care Registered Professional Nursing PLLC d/b/a Future Care Internal Medicine, as plaintiff has not established that it served the amended summons and complaint on them and 153731/2022 HEREFORD INSURANCE COMPANY vs. A TO Z SUPPLY SERVICES, INC. ET AL Page 2 of 5 Motion No. 004 2 of 5 [* 2] submits only affidavits of non-service (See NYSCEF Doc. No. 118) which are, of course, insufficient to do so (See Sanchez v Rosendo, 16 Misc 3d 1115(A) [Sup Ct, Kings County 2007]). Finally, the motion is denied as to defendant Caplet Pharmacy Inc, as the affidavit of service submitted by plaintiff states only that defendant was served with a "Decision & Order with Notice of Entry" via the New York State Secretary of State without reference to the amended summons and complaint or any indication that these documents were included in such service (See NYSCEF Doc. No. 83). The motion is granted, however, as to Downtown Brooklyn PT, PC; All Health DME Inc; Bingo Supplies Inc, Fontto Supply Services Inc; Hunt Supply Inc; Lincoln Diagnostics; Lit Chemists Corp; Open Acupuncture, PC; Rehab Concepts Physical Therapy PC; and Vargas RX Corp DBA 14th St Pharmacy. Plaintiff has established its service of the summons and complaint upon these defendants and its compliance with the additional service requirements pursuant to CPLR 3215(g)( 4). 1 Plaintiff has further provided proof of the facts constituting the claim through the affidavit of Joronda McBumie, who attests to the failure of defendants Orlando Covington and Darius Covington to subscribe their EUO transcripts (See~' State Farm Fire and Cas. Co. v Atl. Diagnostic, L.L.C., 82 Misc 3d 1229(A) [Sup Ct, NY County 2024]) and Leona Stokes' failure to appear for scheduled IME' s on two occasions, in violation of 11 NYCRR 65-1.1 (See ~ ' Am. Tr. Ins. Co. v Smart Choice Med., P.C., 217 AD3d 492 [1st Dept 2023]). 2 Accordingly, it is 1 The affidavit of service upon defendant Open Acupuncture, PC was not included as an exhibit to this motion but was filed on NYSCEF on May 9, 2024 (NYSCEF Doc. No. 109). 2 The affidavit of Joronda McBurnie was not included as an exhibit to this motion but was an exhibit submitted with plaintiff's first motion for a default judgment (NYSCEF. Doc. No. 49). 153731/2022 HEREFORD INSURANCE COMPANY vs. A TO Z SUPPLY SERVICES, INC. ET AL Page 3 of 5 Motion No. 004 3 of 5 [* 3]