Unitrin Safeguard Ins. Co. v. Clemente

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Unitrin Safeguard Ins. Co. v Clemente 2025 NY Slip Op 32304(U) June 30, 2025 Supreme Court, New York County Docket Number: Index No. 157170/2024 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.

FILED: NEW YORK COUNTY CLERK 06/30/2025 04:55 PM INDEX NO. 157170/2024 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 06/30/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 157170/2024 UNITRIN SAFEGUARD INSURANCE COMPANY, MOTION DATE 01/20/2025 Plaintiff, MOTION SEQ. NO. 001 -v- ROSA CLEMENTE, WILDREDO CLEMENTE, 79 EXPRESSRX INC, BIG WAVE SUPPLY, INC, CROSS BAY ORTHOPEDIC SURGERY, PC,HIGHLINE SUPPLY, INC, INNA LEVTSENKO PRACTITIONER IN ADULT HEALTH, PC,JK WELLNESS CHIROPRACTIC, PC,MODERN WELLNESS NP IN FAMILY HEALTH, PLLC,MOSAIC DECISION + ORDER ON DIAGNOSTIC IMAGING, PLLC,NATURALIFE MOTION CHIROPRACTIC, PC,NEW VENTURE PHYSICAL THERAPY, PC,RAIA MEDICAL SERVICES, PC,RASHBE DME, INC, RIGHT MOTION PT, PC,STAND-UP MRI OF ELMHURST PC,UNION SCRIPTS RX, INC,

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

The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 55 were read on this motion to/for JUDGMENT - DEFAULT .

Upon the foregoing documents, plaintiff’s motion for a default judgment is granted, in part,

on default and for the reasons set forth below.

Plaintiff commenced this action on August 6, 2024, seeking a declaratory judgment that

plaintiff is not obligated to pay no-fault benefits for the medical treatment of Rosa Clemente and

Wilfredo Clemente for injuries they allegedly sustained in a motor vehicle collision on August 13,

2023, based upon plaintiff’s founded belief that the injuries alleged did not arise out of that

collision and Rosa and Wilfredo Clemente’s failure to respond to post-EUO demands.

157170/2024 UNITRIN SAFEGUARD INSURANCE COMPANY vs. CLEMENTE, ROSA ET AL Page 1 of 4 Motion No. 001

FILED: NEW YORK COUNTY CLERK 06/30/2025 04:55 PM INDEX NO. 157170/2024 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 06/30/2025

Footnotes

[1] of 4 [* 1] Plaintiff now moves for a default judgment against certain defendants, i.e., Cross Bay Orthopedic Surgery PC, Highline Supply Inc, JK Wellness Chiropractic, PC, Modern Wellness NP In Family Health, PLLC, Mosaic Diagnostic Imaging, PLLC, Naturalife Chiropractic, PC, New Venture Physical Therapy, PC, Rashbe DME, Inc, Right Motion PT, PC, Stand-Up MRI of Elmhurst PC d/b/a Stand-Up MRI of the South Bronx, Union Scripts Rx, Inc. and Rosa and Wilfredo Clemente. DISCUSSION As a threshold matter, the motion is denied as against Mosaic Diagnostic Imaging, PLLC, Right Motion PT, PC, and JK Wellness Chiropractic, PC, which were discontinued from this action, by stipulation, after the filing of this motion (NYSCEF Doc No. 54). The motion is otherwise granted. In order to establish its entitlement to 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, as here, service was effected on certain defendants via the New York State Secretary of State pursuant to BCL §306, plaintiff is also required, per CPLR 3215(g)(4), to establish its additional service of the summons and complaint by first class mail at these defendants’ last known address, (see Sterk-Kirch v Uptown Communications & Elec, Inc., 124 AD3d 413, 414 [1st Dept 2015]). Plaintiff has satisfied these requirements. To wit, plaintiff submits an affidavit of service documenting its service of the summons and complaint on the corporate defendants via the New York State Secretary of State and on the individual defendants pursuant to CPLR 308(1) and (2), respectively (NYSCEF Doc No. 33, affidavits of service). It has also established the additional 157170/2024 UNITRIN SAFEGUARD INSURANCE COMPANY vs. CLEMENTE, ROSA ET AL Page 2 of 4 Motion No. 001

[2] of 4 [* 2] mailing of the summons and complaint upon the corporate defendants as required by CPLR 3215(g)(4) (see NYSCEF Doc. No. 35, notice of default with affirmation of mailing) and defendants’ default (NYSCEF Doc No. 31, Tarasova affirm. at ¶7). While defendants Union Scripts Rx, Inc, Rashbe DME Inc., Highline Supply, Inc. filed an Answer on April 29, 2025, as this filing was months after the submission of plaintiff’s motion, it is a nullity (see Estrella v Herrera, 23 AD3d 320, 321 [1st Dept 2005]). Finally, plaintiff has established proof of the facts constituting its claim through the affidavit of Denise Winant, a No-Fault claim representative employed by Merastar Insurance Company, in which she details the basis for plaintiff’s conclusion that the injuries alleged did not arise out of the August 13, 2023 collision1 (see Hereford Ins. Co. v Interdependent Acupuncture PLLC, 234 AD3d 410, 411 [1st Dept 2025]; see also State Farm Mut. Auto. Ins. Co. v AK Glob. Supply Corp., 203 AD3d 556 [1st Dept 2022]). Accordingly, it is ORDERED that plaintiff’s motion for a default judgment is granted as against defendants Cross Bay Orthopedic Surgery PC, Highline Supply Inc, Modern Wellness NP In Family Health, PLLC, Naturalife Chiropractic, PC, New Venture Physical Therapy, PC, Rashbe DME, Inc, Stand- Up MRI of Elmhurst PC d/b/a Stand-Up MRI of the South Bronx, Union Scripts Rx, Rosa Clemente or Wilfredo Clemente and denied as against defendants Mosaic Diagnostic Imaging, PLLC, Right Motion PT, PC, and JK Wellness Chiropractic, PC; and it is further ORDERED, ADJUDGED, and DECLARED that Unitrin Safeguard Insurance Company has no duty to provide, pay, or honor any current or future claims by Cross Bay Orthopedic Surgery PC, Highline Supply Inc, Modern Wellness NP In Family Health, PLLC, Naturalife Chiropractic, 1 In light of the foregoing Court declines to reach plaintiff’s argument that the individual defendants’ failure to respond to post-EUO demands provided independent grounds to deny the subject no-fault claims. 157170/2024 UNITRIN SAFEGUARD INSURANCE COMPANY vs. CLEMENTE, ROSA ET AL Page 3 of 4 Motion No. 001

[3] of 4 [* 3] PC, New Venture Physical Therapy, PC, Rashbe DME, Inc, Stand-Up MRI of Elmhurst PC d/b/a Stand-Up MRI of the South Bronx, Union Scripts Rx, Rosa Clemente and Wilfredo Clemente, including but not limited to claims for Mandatory Personal Injury Protection (No-Fault), Additional Personal Injury Protection, Uninsured/Underinsured Motorist Coverage, and Supplemental Uninsured/Underinsured Motorist Coverage, in connection with the alleged collision of August 13, 2023, under Unitrin Safeguard Insurance Company claim number 23123772615; and it is further ORDERED that plaintiff shall, within twenty days from the date of this decision and order, serve a copy of same with notice of entry upon defendants and upon the Clerk of the Court, who is directed to enter judgment accordingly; and it is further 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). This constitutes the decision and order of the Court. 6/30/2025 ~~~ DATE HON. JUDY H. KIM, J.S.C. □ ~ ~ CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 157170/2024 UNITRIN SAFEGUARD INSURANCE COMPANY vs. CLEMENTE, ROSA ET AL Page 4 of 4 Motion No. 001

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