ARLENE P. BLUTH, J.S.C.
This case arises from a March 20, 2010 automobile accident in which defendant Sixta Urena claims she was injured. Urena allegedly sought medical treatment at various offices, including the defendants herein, and assigned to these defendants the right to pursue payment under the no-fault laws. Plaintiff commenced this action seeking a declaration that because defendant Urena is not an eligible insured person entitled to no-fault benefits under plaintiffs policy number BV A215554 due to her alleged breach of contract when she failed to appear for two properly requested and scheduled medical examinations, plaintiff is not required to pay defendants' claims.
Defendant Advanced Acupuncture Health, P.C. (AAH), one of the two defendants that has appeared in this declaratory judgment action, moves to dismiss the complaint against it on the grounds that plaintiff has not demonstrated that (1) it properly and timely scheduled two IMEs, and (2) Sixta Urena failed to appear at either of them; this motion is denied.
Plaintiff cross-moves for summary judgment as against defendants AAH and Madison Avenue Radiology, P.C., the other defendant which has appeared (exh E to cross-motion); this branch of the cross-motion is granted. The branch of the cross-motion seeking a default judgment pursuant to CPLR §3215 as against Sixta Urena, Beth Israel Medical Center, Gotham Acupuncture, P.C., Continuum Health Partners, Inc., Downtown Bronx Medical Associates PC, Dynasty Medical Care, PC, Peter H. Morgan, DC, North Coast Physical Therapy and Rehab, PC, Spine Works for Chiropractic, PC, and York Anesthesiologists, PLLC is granted on default. Plaintiff has submitted affidavits of service that these defendants were duly served, but that they have not answered or appeared (exh B-D).
Cross-motion for Summary Judgment
In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015 (1980). In opposing such a motion, the party must lay bare its evidentiary proof. Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v City of New York, 49 N.Y.2d 557 at 562, 427 N.Y.S.2d 595 (1980).
In deciding the motion, the court must draw all reasonable inferences in favor of the non-moving party and must not decide credibility issues (Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204, 562 N.Y.S.2d 89 [1 st Dept 1990]). As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact (Chemical Bank v West 95th Street Development Corp., 161 A.D.2d 218, 554 N.Y.S.2d 604 [1st Dept 1990]), or where the issue is even arguable or debatable (Stone v Goodson, 8 N.Y.2d 8, 200 N.Y.S.2d 627 ).
The cross-moving papers show that the letters scheduling the IMEs were properly addressed (to both Urena at the address given and to her attorneys) and mailed (exh I). Dr. Santiago's affidavit establishes that he was there at the time and place noticed for both IMEs but that Urena did not appear for either exam (exh J). While Dr. Santiago does not explain how he remembers, or what records he reviewed to determine that Urena never appeared, Dr. Santiago did submit an affidavit. And that affidavit has not been contradicted by the movant. Plaintiff has submitted proof that Urena did not appear for either exam and movant has not submitted any proof that she did appear. Accordingly, AAH's motion is denied and plaintiffs cross-motion is granted.
Accordingly, it is hereby
ORDERED that defendant Advanced Acupuncture Health, P.C.'s motion for summary judgment dismissing the complaint as against it is denied, and it is further
ORDERED that the branch of plaintiff s cross-motion for summary judgment against defendants Advanced Acupuncture Health, P.C. and Madison Avenue Radiology, P.C. is granted, and the branch of plaintiff s cross-motion for entry of a default judgment against Sixta Urena, Beth Israel Medical Center, Gotham Acupuncture. P.C, Continuum Health Partners, Inc., Downtown Bronx Medical Associates PC, Dynasty Medical Care, PC, Peter H. Morgan, DC, North Coast Physical Therapy and Rehab, PC, Spine Works for Chiropractic, PC, and York Anesthesiologists, PLLC is granted on default; and it is further
ORDERED and ADJUDGED that defendant Sixta Urena is not an eligible insured person entitled to no-fault benefits under plaintiff American Transit Insurance Company's insurance policy number BV A215554; and it is further
ORDERED and ADJUDGED that plaintiff American Transit Insurance Company is not obligated to honor or pay claims for reimbursement submitted by defendants Beth Israel Medical Center, Gotham Acupuncture. P.C., Continuum Health Partners, Inc., Downtown Bronx Medical Associates PC, Dynasty Medical Care, PC, Peter H. Morgan, DC, North Coast Physical Therapy and Rehab, PC, Spine Works for Chiropractic, PC, and York Anesthesiologists, PLLC, as assignees of Sixta Urena under American Transit Insurance Company's ...