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Ortho Passive Motion Inc. v. Allstate Insurance Co.

District Court of Nassau County, First District

March 1, 2017

Ortho Passive Motion Inc. Assignee of ADAN RIVERA-MARTINEZ, Plaintiff(s)
v.
Allstate Insurance Company, Defendant(s).

          Israel, Israel & Purdy, LLP, attorneys for Plaintiff.

          Law Offices of Peter C. Merani, attorneys for Defendant.

          SCOTT FAIRGRIEVE, J.

         The following named papers numbered 1 to 3

         submitted on this Motion on January 9, 2017

         papers numbered

         Notice of Motion and Supporting Documents

         Order to Show Cause and Supporting Documents 1

         Opposition to Motion 2

         Reply Papers to Motion 3

         The plaintiff commenced this action to recover no-fault benefits for medical services provided to its assignor, Adam Rivera-Martinez, arising out of a motor vehicle accident on August 22, 2011.

         The plaintiff served the summons and complaint in April of 2012 and an answer was filed in May of 2012. After a Notice of Trial was filed on May 23, 2012, the matter was sent to arbitration before Frank Lattanzio, Esq. Both sides were represented by counsel at the March 12, 2014 hearing, after which the arbitrator found in favor of the plaintiff in the amount of $3, 723.72. The defendant, by its then counsel (The Law Offices of Robert P. Tusa), demanded a Trial de Novo. On March 11, 2015, this matter came on for trial. The court found in favor of the plaintiff in the amount of $3, 723.72 plus statutory interest, costs and attorney's fees. On July 29, 2015, judgment was entered in the sum of $7, 784.06, which included statutory interest and attorney fees, along with costs and disbursements.

         After the judgment was entered, the law firm of Peter C. Merani, P.C. served an amended answer dated October 28, 2015. Initially, the amended answer was rejected by plaintiff's counsel, as Peter C. Merani, P.C. was not the attorney of record for the defendant. In November of 2015, Peter C. Merani, P.C. was substituted as counsel for the defendant, but plaintiff's counsel again rejected the defendant's answer, as the time within which to file and serve an amended answer had expired (see CPLR 3025).

         At bar, is the defendant's motion for a protective order pursuant to CPLR 5240, staying the sale of defendant's property pending the resolution of the instant application; an order pursuant to CPLR 5019 and 5240, modifying the judgment to reflect that the policy of insurance has been exhausted and that nothing more is owed to the claimant; an order compelling the plaintiff to execute and file a full satisfaction of judgment pursuant to CPLR 5020; and an order pursuant to CPLR 5021, ...


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