The following e-filed documents, listed by NYSCEF document number (Motion 001) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 were read on this motion to/for JUDGMENT — DEFAULT. DECISION + ORDER ON MOTION In this action for declaratory judgment, Plaintiff Hereford Insurance Company (“Hereford”) seeks a default judgment pursuant to CPLR 3215 against defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; and Isurply LLC (collectively “Non-Answering Defendants”). Plaintiff initially sought default judgment against defendant Dion Smoak (“Claimant”) as well, but has withdrawn the motion as against him. This action arises out of an alleged motor vehicle accident on June 3, 2020 involving Claimant and a livery vehicle insured by Plaintiff (the “insured vehicle”). Claimant alleged that while walking behind the insured vehicle to enter it, the vehicle backed up and collided with him, causing injuries. No police report was created as a result of the alleged collision. Plaintiff denies that such a collision took place and maintains that it obtained a sworn statement from the driver of the insured vehicle in which the driver denied being involved in a collision on June 3, 2020. Rather, he maintains in his sworn statement that he reversed the insured vehicle one foot at a speed of five miles per hour while using a back-up camera, saw Claimant crossing the street behind the insured vehicle, and then asked Claimant if he had been struck by the insured vehicle after Claimant entered the vehicle. According to the driver, the Claimant denied being hit by the insured vehicle and repeatedly denied needing medical attention. Claimant subsequently alleged significant bodily injuries resulting from the purported collision and allegedly began receiving treatment from the other defendants (collectively the “Medical Provider Defendants”). The Medical Provider Defendants then submitted No-Fault claims for treatment allegedly rendered to Claimant. Plaintiff maintains that the circumstances surrounding the alleged collision raised the possibility that Claimant’s injuries and subsequent treatment were non-covered events under the No-Fault Regulation sand the applicable policy because they were not causally related to the collision and/or did not arise from an insured incident. Plaintiff then asserted its rights under the No-Fault Regulations and requested Claimant to submit to an examination under oath (“EUO”) to confirm the legitimacy of the alleged collision and his subsequent treatment by the Medical Provider Defendants. Claimant appeared for his EUO, at which Plaintiff claims he gave testimony that was not credible. Furthermore, Claimant did not subscribe to the transcript of his EUO testimony. Plaintiff consequently denied all coverage arising out of the alleged collision. Plaintiff commenced the present action seeking to declaratory judgment that it has no duty to pay Defendants’ No-Fault claims arising from the alleged June 3, 2020 collision on the basis that (1) it maintains a founded belief, based on its investigation, that the collision was not a covered incident and that Claimant’s alleged injuries and resulting treatment did not arise from a covered event and (2) that Claimant breached a condition precedent to No Fault coverage by failing to subscribe to and return his EUO transcript. Plaintiff now moves for default judgment against the Non-Answering Defendants. Founded Belief A party is entitled to default judgment pursuant to CPLR 3215 where it files proof of service of its Summons and Complaint, proof of the facts constituting its claim, and proof of default (CPLR 3215[f]; Gantt v. North Shore-LIJ Health Sys., 140 AD3d 418 [1st Dept 2016]). Here, Plaintiff has properly filed proof of service of its Summons and Complaint upon the Non- Answering Defendants (NYSCEF Doc. No. 32), presented proof of the facts supporting its claims (NYSCEF Doc. No. 27, Adjuster’s aff), and proof of default (NYSCEF Doc. No. 34). An insurer may assert a lack of coverage defense based on the fact or founded belief that a claimant’s alleged injury did not arise out of a covered accident (Cent. Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). In demonstrating the facts that constitute its founded belief, an insurer can present circumstantial evidence to prove such facts provided that a reasonable inference can be drawn from the facts presented (Benzaken v. Verizon Communications, Inc., 21 AD3d 864, 865 [2d Dept 2005], quoting Staples v. Sisson, 274 AD2d 779, 781 [3d Dept 2000]). A defaulting defendant is deemed to have admitted the allegations in a plaintiff’s complaint by failing to answer (State Farm Mut. Auto. Ins. Co. v. Surgicore of Jersey City, 195 AD3d 454, 455 [1st Dept 2021]). The Court finds that Plaintiff fails to present facts sufficient to create a reasonable inference in support of its founded belief that the collision was not a covered event. The affidavit of Plaintiff’s claims adjuster cites bases for its founded belief: first, the driver’s sworn statement denying that a collision had occurred; second, the purported statement of the Claimant to the driver denying that a collision had occurred; third, that no police report was created in the aftermath of the collision; and fourth, that excessive and questionable billing was submitted by at least one Medical Provider Defendant (Adjuster’s aff 14). Plaintiff also avers that Claimant’s EUO testimony “was not credible and consistent with the events documented in the film of the incident” (id. 16). The driver’s sworn statement is contradicted by Claimant’s EUO testimony, in which he claims he was struck by the insured vehicle (NYSCEF Doc. No. 30 at 14-20). Plaintiff fails to provide any material related to the alleged film depicting the collision outside of a few conclusory statements in its moving papers. Plaintiff also fails to append any of the purportedly questionable or excessive medical bills allegedly submitted by the Medical Provider Defendants to its moving papers. Consequently, the branch of Plaintiff’s motion seeking default judgment on the basis of its founded belief is denied. Breach of Condition Precedent 11 NYCRR 65-1.1 requires a claimant to fully comply with the terms of coverage in a No-Fault policy as a condition precedent to all claims against an insurance company under such policy. A claimant’s failure to subscribe to and return an EUO transcript constitutes a breach of a condition precedent to coverage under the No-Fault regulation and warrants denial of claims submitted under a policy regulated thereunder (Kemper Independence Ins. Co. v. Cornerstone Chiropractic, P.C., 185 AD3d 468 [1st Dept 2020]; Hereford Ins. Co. v. Forest Hills Med., P.C., 172 AD3d 567, 568 [1st Dept 2019]). Here, Claimant failed to subscribe to and return the transcript for his EUO (NYSCEF Doc. No. 30). This constitutes a breach of a condition precedent to No Fault coverage and the Court accordingly grants this branch of Plaintiff’s motion for default judgment. Accordingly, it is hereby: ORDERED that the branch of Plaintiff’s motion for default judgment on the basis of founded belief against defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; and Isurply LLC, is denied; and it is further ORDERED that the branch of Plaintiff’s motion for default judgment on the basis of breach of a condition precedent to coverage under the No-Fault Regulations against defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; and Isurply LLC, is granted; and it is further ORDERED that Plaintiff’s motion for default judgment against defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; and Isurply LLC, is granted; and it is further ORDERED, ADJUDGED, and DECLARED that Plaintiff owes no duty to provide No- Fault reimbursements to defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; and Isurply LLC, arising out of the alleged incident of June 3, 2020 (Hereford claim number 90748-01); and it is further ORDERED, ADJUDGED, and DECLARED that Plaintiff is not required to pay any sums, monies, damages, awards, and/or benefits to defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; and Isurply LLC for any claim or bill submitted by or on behalf of Dion Smoak, including but not limited to Mandatory Personal Injury Protection No-Fault, Additional personal Injury Protection, Bodily Injury and Property Damage Liability, and Supplemental Uninsured/Underinsured Motorist Coverage, for any treatment allegedly rendered to Dion Smoak in connection with the alleged incident of June 3, 2020 (Hereford claim number 90748-01); and it is further ORDERED that the Clerk is directed to enter judgment as against defendants Mid Atlantic Medical, P.C.; Park Place Medical Imaging PC; Trombmed NY Inc; Maz Supply Inc; Midwood Surgical Supplies Inc; Advanced Recovery Solution Inc; Synergy Medical Laboratories, PC; Sedation Vacation Periop Med PLLC; Spine Options; HMP Orthopedics; and East Coast Med Group Inc; Isurply LLC; and it is further ORDERED that the balance of action proceed against the remaining defendants. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 12, 2022
