Preview
FILED: NASSAU COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 614817/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU AFFIRMATION IN
------------------------------------------------------------X SUPPORT
PROGRESSIVE CASUALTY INSURANCE COMPANY,
DRIVE NEW JERSEY INSURANCE COMPANY,
PROGRESSIVE ADVANCED INSURANCE COMPANY,
PROGRESSIVE GARDEN STATE INSURANCE COMPANY,
PROGRESSIVE MAX INSURANCE COMPANY, Index: 614817/2023
PROGRESSIVE SPECIALTY INSURANCE COMPANY AND
UNITED FINANCIAL CASUALTY COMPANY,
Plaintiff(s),
-against-
JUAN D. DELACRUZ MD,
Defendant(s).
___________ _ ___ _ _ _ _ _-- _ ___------_ ________________Ç
NICOLE E. HOLLER, ESQ, an attorney duly admitted to practice law in the Courts of the
State of New York, affirms the following statements are true under penalties of perjury:
1. I am a Senior Partner of McCORMACK, MATTEI & HOLLER, attorneys for the
Plaintiffs, and I am fully familiar with the facts and circumstances set forth herein.
2. This affirmation and the exhibits annexed hereto are submitted in support of the
within motion with seeks an Order granting judgment on default pursuant to CPLR § 3215 as to
Defendant and for such other and further relief as this Court may deem just and proper.
3. This action seeks a declaration that Plaintiffs are under no obligation to reimburse
Defendant for services purportedly rendered and billed to Progressive pursuant to the No-Fault
Laws and Regulations and the Insurance Law of the State of New York, based upon the
Defendant's failure to satisfy conditions precedent to coverage or to verify their claims as required
by law, and that Defendant may not collect against any patient-assignors personally and that any
liens between the Defendant and the patients are null and void.
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DEFAULT
4. On September 13, 2024, Plaintiffs commenced this action against the Defendant by
filing a Summons and Verified Complaint and purchasing an index number. A copy of the
Summons and Verified Complaint is annexed hereto as "Exhibit A".
5. The following Defendant has been served in the manner as indicated in the
following chart, and shall hereinafter be referred to as the "Defaulting Defendant":
Date Affidavit of Service Filed With
Defendant Manner Served Date Served
County Clerk
JUAN D. DELACRUZ
Personal Service 09/22/23 10/06/23
A copy of the Affidavit of Service is annexed hereto as Exhibit "B".
6. The defaulting Defendant served via the New York Secretary of State has also
been served with a Notice of Service of the Summons and Verified Complaint pursuant to BCL §
306(B) and/or PLLC § 306(B) by first class mail at their last known addresses on August 18,
2023 at least twenty days before the entry of judgment sought herein, as well as an annexed copy
of the Summons and Verified Complaint pursuant to Sections 3215(f), 3215(g)(4)(i) and
3215(g)(4)(ii) of the New York Civil Practice Law and Rules. A copy of said Notice with
Affidavit of Service is also annexed hereto as a part of Exhibit "B".
7. Following the service of the Summons and Verified Complaint, the Defendant
failed, refused or neglected to appear, answer or otherwise move this Court for any relief in
connection with this application.
8. It is submitted that service upon Defendant was timely, that Defendant has not
appeared or otherwise moved this Court for any relief in connection with this application, and that
the thirty days to do so has expired (CPLR § 320(a)).
9. CPLR § 320 provides:
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(a) Requirement of appearance. The defendants appear by serving an answer or a notice
of appearance, or by making a motion which has the effect of extending the time to
answer. An appearance shall be made within twenty days after service ofthe summons,
except that if the summons was served on the defendant by delivering it to an official
of the state authorized to receive service in his behalf or if it was served pursuant to
section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or
315, the appearance shall be made within thirty days after service is complete. If the
complaint is not served with the summons, the time to appear may be extended as
provided in subdivision (b) of section 3012.
10. More than 30 days has elapsed since completion of service, and the Defendant is in
default.
11. The basis for requesting the Examinations Under Oath of the Defendant as well as
the facts and circumstances for the relief requested in the subject action are set forth in the Verified
Complaint and the attached affidavit of Joseph M. Andre, an employee of Plaintiffs. Therein, the
details of the allegations against the Defendant are amply demonstrated.
"C"
12. Amiexed hereto as Exhibit are the Examination Under Oath Requests for the
claims that are the subject of this action as set forth in the Verified Complaint. See Generally, the
affidavit of Michele Bove, which discusses the mailing and office procedures for EUO no-shows.
13. For each of the claims submitted by Defendant for No-Fault reimbursement, the
Plaintiffs'
insurance policy stated as follows:
Upon request by the company, the Eligible Injured person, that persons assignee
or representative, or any other person claiming coverage under the policy shall:
(a) execute a written proof of claim under oath;
(b) as may reasonably be required submit to examinations under oath by any
person named by the Company and subscribe the same.
14. In addition, each of the claims submitted by Defendants for No-Fault
reimbursement is governed by New York State Regulation 68A, section 65-1.1, Conditions, Action
Against Company and Proof of Claim, which states as follows:
Conditions:
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Action Against Company. No action shall lie against the Company unless, as a
condition precedent thereto, there shall have been full compliance with the terms
of this coverage.
Proof of Claim: Medical, Work Loss, and Other Necessary Expenses. In the case
of a claim for health service expenses, the eligible injured person or that person's
assignee or representative shall submit written proof of claim to the Company,
(a) execute a written proof of claim under oath;
(b) as may reasonably be required submit to examinations under oath by any
person named by the Company and subscribe the same;
(c) provide authorization that will enable the Company to obtain medical records;
and
(d) provide any other pertinent information that may assist the Company in
determining the amount due and payable.
15. Defendant failed to respond to multiple requests for additional verification and
refused to provide pertinent information to assist Plaintiffs in determining the amounts due and
payable, pursuant to section 65-1.1(d).
16. Additionally, the failure of Defendant to submit to the Examinations Under Oath
duly requested on behalf of the Plaintiffs, is a violation of the policy's contractual duties and a
violation of the proof of claim conditions that precede coverage under Regulation section 65-
68,
1.1 (b).
17. As a result, all No-Fault billing for services rendered by the Defendant and
submitted to Plaintiffs for the claims that are the subject of this action was delayed and denied,
consistent with Regulation 68, Section 65-1.1, which provides that no action shall lie against an
insurance company unless, as a condition precedent thereto, there shall have been full compliance
with the terms of the policy's coverage.
18. As a result, the Defendant has outstanding claims for which they seek
reimbursement (hereinafter "Outstanding Claims"). The amount of the Outstanding Claims for
Defendant is in excess of $65,854.53.
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19. Based upon the foregoing, Plaintiffs respectfully are entitled to a judgment on
default as to Defendant declaring that:
(a) Plaintiffs are under no obligation to pay any of the No-Fault claims of the
Defendants for which Examinations Under Oath and documents were requested on
grounds that the Defendant has not complied with conditions precedent to
reimbursement for those claims under the No-Fault Laws and Regulations and
Insurance Law of this State; and
(b) that the Defendant may not collect against any patient-assignors personally as to
any of the No-Fault claims of the Defendant for which Examinations Under Oath
and documents were requested and that any liens between the Defendant and the
patients for said claims are null and void.
20. None of the parties to this action are infants or under any disability and there should
be no reason why this Judgment should not be entered as requested herein.
21. No prior application has been made for the relief requested herein.
WHEREFORE, Plaintiffs request that the instant motion be granted in its entirety and
such other relief as the Court may deem just, proper and equitable.
Dated: Garden City, New York
January 22, 2024 Yours, etc.
McCORMA TTEI & HOLLER
By:
NICOLE E. HOLLER, ESQ.
Attorneys for Plaintiffs
1035 Stewart Avenue, Second Floor
Garden City, New York 11530
(516) 505-0600 Ext. 221
File No.: Y-3007.dj
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Preview
FILED: NASSAU COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 614817/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU AFFIRMATION IN ------------------------------------------------------------X SUPPORT PROGRESSIVE CASUALTY INSURANCE COMPANY, DRIVE NEW JERSEY INSURANCE COMPANY, PROGRESSIVE ADVANCED INSURANCE COMPANY, PROGRESSIVE GARDEN STATE INSURANCE COMPANY, PROGRESSIVE MAX INSURANCE COMPANY, Index: 614817/2023 PROGRESSIVE SPECIALTY INSURANCE COMPANY AND UNITED FINANCIAL CASUALTY COMPANY, Plaintiff(s), -against- JUAN D. DELACRUZ MD, Defendant(s). ___________ _ ___ _ _ _ _ _-- _ ___------_ ________________Ç NICOLE E. HOLLER, ESQ, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following statements are true under penalties of perjury: 1. I am a Senior Partner of McCORMACK, MATTEI & HOLLER, attorneys for the Plaintiffs, and I am fully familiar with the facts and circumstances set forth herein. 2. This affirmation and the exhibits annexed hereto are submitted in support of the within motion with seeks an Order granting judgment on default pursuant to CPLR § 3215 as to Defendant and for such other and further relief as this Court may deem just and proper. 3. This action seeks a declaration that Plaintiffs are under no obligation to reimburse Defendant for services purportedly rendered and billed to Progressive pursuant to the No-Fault Laws and Regulations and the Insurance Law of the State of New York, based upon the Defendant's failure to satisfy conditions precedent to coverage or to verify their claims as required by law, and that Defendant may not collect against any patient-assignors personally and that any liens between the Defendant and the patients are null and void. 1 of 5 FILED: NASSAU COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 614817/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/22/2024 DEFAULT 4. On September 13, 2024, Plaintiffs commenced this action against the Defendant by filing a Summons and Verified Complaint and purchasing an index number. A copy of the Summons and Verified Complaint is annexed hereto as "Exhibit A". 5. The following Defendant has been served in the manner as indicated in the following chart, and shall hereinafter be referred to as the "Defaulting Defendant": Date Affidavit of Service Filed With Defendant Manner Served Date Served County Clerk JUAN D. DELACRUZ Personal Service 09/22/23 10/06/23 A copy of the Affidavit of Service is annexed hereto as Exhibit "B". 6. The defaulting Defendant served via the New York Secretary of State has also been served with a Notice of Service of the Summons and Verified Complaint pursuant to BCL § 306(B) and/or PLLC § 306(B) by first class mail at their last known addresses on August 18, 2023 at least twenty days before the entry of judgment sought herein, as well as an annexed copy of the Summons and Verified Complaint pursuant to Sections 3215(f), 3215(g)(4)(i) and 3215(g)(4)(ii) of the New York Civil Practice Law and Rules. A copy of said Notice with Affidavit of Service is also annexed hereto as a part of Exhibit "B". 7. Following the service of the Summons and Verified Complaint, the Defendant failed, refused or neglected to appear, answer or otherwise move this Court for any relief in connection with this application. 8. It is submitted that service upon Defendant was timely, that Defendant has not appeared or otherwise moved this Court for any relief in connection with this application, and that the thirty days to do so has expired (CPLR § 320(a)). 9. CPLR § 320 provides: 2 of 5 FILED: NASSAU COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 614817/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/22/2024 (a) Requirement of appearance. The defendants appear by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. An appearance shall be made within twenty days after service ofthe summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete. If the complaint is not served with the summons, the time to appear may be extended as provided in subdivision (b) of section 3012. 10. More than 30 days has elapsed since completion of service, and the Defendant is in default. 11. The basis for requesting the Examinations Under Oath of the Defendant as well as the facts and circumstances for the relief requested in the subject action are set forth in the Verified Complaint and the attached affidavit of Joseph M. Andre, an employee of Plaintiffs. Therein, the details of the allegations against the Defendant are amply demonstrated. "C" 12. Amiexed hereto as Exhibit are the Examination Under Oath Requests for the claims that are the subject of this action as set forth in the Verified Complaint. See Generally, the affidavit of Michele Bove, which discusses the mailing and office procedures for EUO no-shows. 13. For each of the claims submitted by Defendant for No-Fault reimbursement, the Plaintiffs' insurance policy stated as follows: Upon request by the company, the Eligible Injured person, that persons assignee or representative, or any other person claiming coverage under the policy shall: (a) execute a written proof of claim under oath; (b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same. 14. In addition, each of the claims submitted by Defendants for No-Fault reimbursement is governed by New York State Regulation 68A, section 65-1.1, Conditions, Action Against Company and Proof of Claim, which states as follows: Conditions: 3 of 5 FILED: NASSAU COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 614817/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/22/2024 Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. Proof of Claim: Medical, Work Loss, and Other Necessary Expenses. In the case of a claim for health service expenses, the eligible injured person or that person's assignee or representative shall submit written proof of claim to the Company, (a) execute a written proof of claim under oath; (b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same; (c) provide authorization that will enable the Company to obtain medical records; and (d) provide any other pertinent information that may assist the Company in determining the amount due and payable. 15. Defendant failed to respond to multiple requests for additional verification and refused to provide pertinent information to assist Plaintiffs in determining the amounts due and payable, pursuant to section 65-1.1(d). 16. Additionally, the failure of Defendant to submit to the Examinations Under Oath duly requested on behalf of the Plaintiffs, is a violation of the policy's contractual duties and a violation of the proof of claim conditions that precede coverage under Regulation section 65- 68, 1.1 (b). 17. As a result, all No-Fault billing for services rendered by the Defendant and submitted to Plaintiffs for the claims that are the subject of this action was delayed and denied, consistent with Regulation 68, Section 65-1.1, which provides that no action shall lie against an insurance company unless, as a condition precedent thereto, there shall have been full compliance with the terms of the policy's coverage. 18. As a result, the Defendant has outstanding claims for which they seek reimbursement (hereinafter "Outstanding Claims"). The amount of the Outstanding Claims for Defendant is in excess of $65,854.53. 4 of 5 FILED: NASSAU COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 614817/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/22/2024 19. Based upon the foregoing, Plaintiffs respectfully are entitled to a judgment on default as to Defendant declaring that: (a) Plaintiffs are under no obligation to pay any of the No-Fault claims of the Defendants for which Examinations Under Oath and documents were requested on grounds that the Defendant has not complied with conditions precedent to reimbursement for those claims under the No-Fault Laws and Regulations and Insurance Law of this State; and (b) that the Defendant may not collect against any patient-assignors personally as to any of the No-Fault claims of the Defendant for which Examinations Under Oath and documents were requested and that any liens between the Defendant and the patients for said claims are null and void. 20. None of the parties to this action are infants or under any disability and there should be no reason why this Judgment should not be entered as requested herein. 21. No prior application has been made for the relief requested herein. WHEREFORE, Plaintiffs request that the instant motion be granted in its entirety and such other relief as the Court may deem just, proper and equitable. Dated: Garden City, New York January 22, 2024 Yours, etc. McCORMA TTEI & HOLLER By: NICOLE E. HOLLER, ESQ. Attorneys for Plaintiffs 1035 Stewart Avenue, Second Floor Garden City, New York 11530 (516) 505-0600 Ext. 221 File No.: Y-3007.dj 5 of 5