This decision has been referenced in a table in the New York Supplement.
Law office of James F. Sullivan New York, NY, for Plaintiff.
Melanie B. Nolan Melville, NY, for Defendant.
Jazmine L. Rodriguez, Brooklyn, NY, pro se.
The Rybak Law, PLLC, Brooklyn, NY, for Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic.
DORIS LING-COHAN, J.
This is an action for declaratory judgment arising out of an alleged motor vehicle accident. On January 12, 2011, defendant Jazmine L. Rodriguez (Rodriguez) was allegedly injured in the accident involving a vehicle insured by plaintiff American Transit Insurance Co. Defendant Rodriguez sought medical treatment from defendants The Brookdale Hospital Medical Center, Charles Deng Acupuncture, P.C. (Deng Acupuncture), Compas Medical, P.C. (Compas Medical), Metropolitan Diagnostic Medical Care, P.C., New Way Medical Supply, Corp. (New Way Medical), Seacoast Medical, P.C., and T & J Chiropractic, P.C. (T & J Chiropractic) (collectively the " Medical Provider Defendants" ). Thereafter, defendant Rodriguez allegedly assigned her No-Fault rights to the Medical Provider Defendants. According to plaintiff, defendant Rodriguez breached and failed to comply with policy requirements set forth in the insurance policy, in that defendant Rodriguez failed to appear for an examination under oath, and, thus, plaintiff is not obligated to afford coverage.
Plaintiff now moves for a default judgment, pursuant to CPLR 3215, against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., and for summary judgment, pursuant to CPLR 3212, against defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic. Such defendants jointly oppose plaintiff's motion for summary judgment.
CPLR 3215 provides that " [w]hen a defendant has failed to appear, ... the plaintiff may seek a default judgment against him.... The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305." A party moving to prevent a default judgment from being entered must demonstrate a reasonable excuse for the default and a meritorious defense to the action. CPLR C3215:24; Wehringer v. Brannigan, 232 A.D.2d 206, 206 (1st Dep't 1996).
Here, plaintiff's motion for a default judgment is granted as to defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., as such defendants, to date, have failed to answer plaintiff's complaint or appear in this action. Additionally, such defendants have not submitted any opposition to plaintiff's motion. Defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic take no position on this portion of plaintiff's motion.
The Court of Appeals has stated, " [t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (citations omitted). The movant must establish prima facie entitlement to summary judgment by tender of evidentiary proof in admissible form. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067-1068 (1979); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853. Additionally, summary ...