Root Ins. Co. v. A & R Med. Supply Corp.

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Root Ins. Co. v A & R Med. Supply Corp. 2026 NY Slip Op 30896(U) March 11, 2026 Supreme Court, New York County Docket Number: Index No. 161960/2024 Judge: Phaedra F. Perry-Bond 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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1619602024.NEW_YORK.001.LBLX000_TO.html[03/19/2026 3:45:55 PM]

FILED: NEW YORK COUNTY CLERK 03/11/2026 03:40 PM INDEX NO. 161960/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 03/11/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PHAEDRA F. PERRY-BOND PART 35 Justice -------------------X INDEX NO. 161960/2024 ROOT INSURANCE COMPANY, MOTION DATE 05/06/2025 Plaintiff, MOTION SEQ. NO. 001 - V -

A AND R MEDICAL SUPPLY CORP., ABOHUSSEIN PT, P.C.,AETHER EQUIPMENT, LLC,ALPHA DELTA OMEGA DIAGNOSTICS, INC.,APOLLO CLINICAL LABORATORIES, INC. D/B/A QUALITY LABORATORY SERVICES, INC.,ARTE MEDICAL PRIMARY CARE, P.C.,ATLANTIC MEDICAL & DIAGNOSTIC, P.C.,AUSTIN SUPPLY, INC.,BANDB SUPPLY, INC.,COMMUNITY MEDICAL CARE OF N.Y., P.C.,CR MEDICAL CARE, P.L.L.C., EMPIRE STATE AMBULATORY SURGERY CENTER, FAMILY PHARMACY GROUP, INC. D/B/A X PHARMACY, IMAGING CENTER OF ENGLEWOOD, LLC,JAMAICA AVENUE SUPPLY, INC.,MEDEXPRESS PHARMACY, INC. D/B/A ULTRACARE PHARMACY, NAMASTE PSYCHOLOGICAL DECISION + ORDER ON SERVICES, P.C.,NORTHEAST MEDICAL DEVICES, MOTION LLC,NY BALANCE ACUPUNCTURE, P.C.,PHYSIO PHARMACY, INC.,PULSE MEDICAL CARE, P.C.,RAFAEL YMKOBOV FAMILY HEALTH NP, P.C.,SEDATION VACATION PERIOPERATIVE MEDICINE, PLLC,SOUTH SHORE FAMILY HEALTH NP, P.C.,TITAN DIAGNOSTIC IMAGING SERVICES, INC.,UPTOWN HEAL TH CARE MANAGEMENT, INC. A/KIA EAST TREMONT MEDICAL CENTER A/KIA ETM-ASC AMBULATORY SURGERY, W JOSEPH GORUM MD, P.C.,WALMED EQUIPMENT, LLC,WESTEND SUPPLY, INC.,HENRY RODRIGUEZ, DENY LUGO, PEDRO SALAZAR

Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 001} 52, 53, 54, 55, 56, 57, 58, 59,60,61,62,63,64,65,66,67,68, 75, 78, 79, 80 were read on this motion to/for JUDGMENT-DEFAULT

Upon the foregoing documents, and good cause having been shown, Plaintiff's motion for

default judgment is denied without prejudice with leave to renew upon naming a necessary party

to this action - namely Krisnette Perdomo. The cross motion by Defendants Austin Supply Inc.,

A and R Medical Supply Corp., and Jamaica Avenue Supply, Inc. (collectively "Cross Movants") 161960/2024 ROOT INSURANCE COMPANY vs. A AND R MEDICAL SUPPLY CORP. ET AL Page 1 of⁴ Motion No. 001

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FILED: NEW YORK COUNTY CLERK 03/11/2026 03:40 PM INDEX NO. 161960/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 03/11/2026

to compel acceptance of their late answers or alternatively to dismiss pursuant to CPLR

321 l(a)(IO) is granted in part and denied in part.

As a preliminary matter, there is no opposition filed with respect to the cross motion to

compel acceptance of Defendants Austin Supply Inc., A and R Medical Supply Corp., and

Jamaica Avenue Supply, Inc.'s Answers. Moreover, the Court is mindful of New York's public

policy in favor of resolving cases on the merits, and Plaintiff has not shown how it is prejudiced

by accepting the late answers (see, e.g. Genao v Salcedo Maintenance Corp., 168 AD3d 528,

528-529 [1st Dept 2019] citing Yea Soon Chung v Mid Queens LP, 139 AD3d 490 [1st Dept

2016]). Therefore, the cross motion is granted to the extent Plaintiff is compelled to accept

Defendants Austin Supply Inc., A and R Medical Supply Corp., and Jamaica Avenue Supply,

Inc.'s late Answers.

The branch of the cross motion seeking dismissal pursuant to CPLR 321 l(a)(l0) is granted

solely to the extent that Plaintiff is directed to file and serve an Amended Complaint naming

Krisnette Perdomo as a party to this action. The Cross Movants are correct that Krisnette Perdomo,

who is the policy holder in this declaratory judgment action and who allegedly made material

misrepresentations with respect to the policy and failed to appear for examinations under oath, is

a necessary party as she may be inequitably affected by a judgment in this action (see CPLR

I00I[a]).

However, dismissal for nonjoinder of a necessary party is highly disfavored and only

occurs as a last resort (see Swezey v Lynch, 87 AD3d 119, 132 [1st Dept 2011] citing L-3

Communications Corp. v Safenet, Inc., 45 AD3d 1, 11 [1st Dept 2007]). Instead, the more

appropriate remedy is to order Plaintiff to file and serve an Amended Complaint naming the

necessary party (see Genger v Genger, 87 AD3d 871, 874 [1st Dept 2011] citing Leeward Isles

161960/2024 ROOT INSURANCE COMPANY vs. A AND R MEDICAL SUPPLY CORP. ET AL Page 2of4 Motion No. 001

FILED: NEW YORK COUNTY CLERK 03/11/2026 03:40 PM INDEX NO. 161960/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 03/11/2026

Footnotes

[2] of 4 [* 2] Resorts, Ltd. v Hickox, 61 AD3d 622 [1st Dept 2009]; see also Censi v Cove Landings, Inc., 65 AD3d 1066, 1068 (2d Dept 2009]). Therefore, the branch of the cross motion seeking dismissal is denied, but Plaintiff is directed to amend its Complaint to name Krisnette Perdomo as a necessary party. Because Plaintiff failed to name a necessary party and is directed to file and serve an Amended Complaint, the motion for default judgment is denied, without prejudice, with leave to renew after serving the Amended Complaint on the defaulting parties. Accordingly, it is hereby, ORDERED that the motion for default judgment is denied, without prejudice, with leave to renew after amending the Complaint to include Krisnette Perdomo as a necessary party, and after the parties allegedly in default have been served with the amended complaint; and it is further ORDERED that the cross motion to compel Plaintiff to accept the late answers of Defendants Austin Supply Inc., A and R Medical Supply Corp., and Jamaica Avenue Supply, Inc. is granted, and Plaintiff is compelled to accept the answers filed by Defendants Austin Supply Inc., A and R Medical Supply Corp., and Jamaica Avenue Supply, Inc.; and it is further ORDERED that the cross motion to dismiss for failure to name a necessary party is denied, but Plaintiff is directed to, within thirty days of entry of this Decision and Order, file and serve an Amended Complaint naming Krisnette Perdomo as a necessary party; and it is further ORDERED that the active parties shall meet and confer immediately and submit a proposed preliminary conference order to the Court via e-mail, but in no event shall the proposed order be submitted any later than May 26, 2026; and it is further 161960/2024 ROOT INSURANCE COMPANY vs. A AND R MEDICAL SUPPLY CORP. ET AL Page 3 of 4 Motion No. 001

[3] of 4 [* 3] ORDERED that should the parties elect to engage in Court sponsored mediation rather than discovery, the parties shall notify the Court via e-mail so an order of referral to the Court's sponsored ADR program can be issued; and it is further ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this Decision and Order, with notice of entry, on all active parties via NYSCEF and on all defaulting parties via first-class mail at their last known addresses. This constitutes the Decision and Order of the Co 3 /,, }2, DATE HON. PHAEDRA F. 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 161960/2024 ROOT INSURANCE COMPANY vs. A AND R MEDICAL SUPPLY CORP. ET AL Page4of4 Motion No. 001

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