Preview
FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---···------- -- ----····-····-······-----···- ¬-----X
AMERICAN TRANSIT INSURANCE COMPANY,
Index #: 157032/2019
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
LAMERIA SMITH, AFFINITY RX INC., APS
CHIROPRACTIC SERVICES, P.C., EDEN
MEDICAL, P.C., HEALTHWISE MEDICAL
ASSOCIATES P.C., MEDAID RADIOLOGY, LLC,
MEDICAL SUPPLY OF NY CORP, MOLNAR
MEDICAL SERVICES, PC, NOURSEEN P.T. P.C,
NYC CARE CHIROPRACTIC, PC, SOLOMON
HALIOUA, MD, WELLNESS PHYSICAL THERAPY
REHABILITATION P.L.L.C, ZU RIVER
ACUPUNCTURE P.C.
Defendants.
.. __...·------------··- ---------------------X
DANIEL PASSER, ESQ., an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms, pursuant to CPLR § 2106, under penalties of perjury as
follows:
1. I am the attorney of record for the Plaintiff, AMERICAN TRANSIT INSURANCE
"ATIC"
COMPANY (hereinafter or "AMERICAN TRANSIT"), and as such, am fully familiar
with the facts and circumstances ofthe within matter.
2. As such, I am fully familiar with the facts and circumstances set forth herein. I make this
affirmation based upon personal knowledge, where applicable, and upon a review of the file
maintained in our office. Reference is also made to the Affidavit of Merit of CHERYL GLAZE,
the No-Fault Claims Sueprvisor employed by ATIC at all relevant times annexed as Exhibit A.
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3. This affirmation is submitted in support of ATIC's application for an order: (i)pursuant to
CPLR § 3215, granting ATIC a judgment on default against individual LAMERIA SMITH
(hereinafter "SMITH") and co-defendants, AFFINITY RX INC., APS CHIROPRACTIC
SERVICES, P.C., EDEN MEDICAL, P.C., HEALTHWISE MEDICAL ASSOCIATES P.C.,
MEDAID RADIOLOGY, LLC, MEDICAL SUPPLY OF NY CORP, MOLNAR MEDICAL
SERVICES, PC, NOURSEEN P.T. P.C, NYC CARE CHIROPRACTIC, PC, SOLOMON
HALIOUA, MD, WELLNESS PHYSICAL THERAPY REHABILITATION P.L.L.C, ZU
RIVER ACUPUNCTURE P.C. (the "DEFAULTING PROVIDERS"), for failure to answer or
appear in this action; (ii)pursuant to CPLR § 3212, granting ATIC summary judgment against
PROVIDERS");2
defendants, AFFINITY RX INC., ("ANSWERING (iii) granting ATIC a
declaratory judgment that SMITH is not an eligible injured person entitled to no-fault benefits
under ATIC insurance policy CAP615959, Claim No.: 1050148-02, (iv) granting ATIC a
declaratory judgment that ATIC is not obligated to honor or pay claims for reimbursement
submitted by the PROVIDERS named herein, as assignees of SMITH, under ATIC insurance
policy CAP615959, Claim No.: 1050148-02, nor is ATIC required to provide, pay, honor or
reimburse any claims set forth herein, in any current or future proceeding, including, without
limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under ATIC
insurance policy CAP615959, Claim No.: 1050148-02 from the alleged accident of January 27,
2019, involving SMITH as SMITH is not an eligible injured person as defined by the Policy and/or
New York State Regulation 68; (iv) a declaratory judgment that ATIC is not required to provide,
pay, or honor any current or future claim for no-fault benefits under the Mandatory Personal Injury
Protection endorsement under ATIC insurance policy CAP615959, Claim No.: 1050148-02, nor
2 "PROVIDERS."
DEFAULTING PROVIDERS and ANSWERING PROVIDERS are referred to collectivelyherein as the
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is ATIC required to provide, pay, honor or reimburse any claims set forth herein, in any current or
future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover
no-fault benefits arising under ATIC insurance policy CAP615959, Claim No.: 1050148-02 from
the alleged accident of January 27, 2019, involving SMITH as SMITH is not an eligible injured
person as defined by the Policy and/or New York State Regulation 68; and (v) for such other and
further relief as this court deems just, proper and equitable.
FACTS AND BACKGROUND
4. ATIC issued a policy of insurance to itsinsured RIGO LIMO-AUTO CORP, under a New
York policy of insurance numbered CAP615959. (A copy of the Policy is annexed hereto as
Exhibit B).
5. The of insurance that ATIC issued to RIGO LIMO-AUTO CORP included a no-
policy
fault endorsement which provided coverage to an insured or an eligible injured person in the
amnunt of $50,000 for allnecessary expenses resulting from a motor vehicle accident, and was in
effect on January 27, 2019, as noted below.
6. The policy of insurance contained the mandatory no-fault endorsement prescribed by the
New York State Insurance Department which started in part:
MANDATORY PERSONAL INJURY PROTECTION
ENDORSEMENT NEW YORK
SECTION 1 - MANDATORY PERSONAL INJURY PROTECTION
The Company will pay first party benefits to reimburse for basic economic loss sustained
by an eligible injured person on account of personal injuries caused by the an accident
arising out ofthe use or operation of a motor vehicle or a motorcycle during the policy
and within the United States of America, itsterritories of possessions, or Canada.
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7. The applicable no-fault statute permits insurers to request an Independent Medical
Examination. Specifically, New York Codes of Rules and Regulations 65-1.1 provides in
pertinent part:
CONDITIONS
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.
Upon request by the Company, the eligible injured person or that person's
assignee or representative shall:
(a) Execute a written proof of oath;
(b) As may reasonably be required to 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.
8. The Policy and New York Insurance Regulation 68 further provide that:
The eligible injured person shall submit to an independent medical examination
by physician's selected by, or acceptable to, the Company when, and as often as,
the Company may reasonably require.
9. On January 27, 2019, a vehicle owned by the insured RIGO LIMO-AUTO CORP was
allegedly involved in a motor vehicle accident. The claimant, SMITH was allegedly a a
passenger in the insured vehicle in the vehicle and made a claim to the Plaintiff, AMERICAN
TRANSIT, as a purported eligible injured person of the above-referenced insurance policy, to the
plaintiff under claim # 1050148-02.
10. AMERICAN TRANSIT, received notice of the subject accident from SMITH.
11. AMERICAN TRANSIT, received a New York Motor Vehicle No-Fault Insurance Law
Application for Motor Vehicle No-Fault Benefits (NF-2) on February 22, 2019 from and on
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behalf of individual defendant SMITH, claiming benefits under the policy. (A copy of the NF-2
is annexed as Exhibit C). In addition, AMERICAN TRANSIT received a letter of
representation from SMITH's attorney, Harmon, Linder & Rogowsky, on February 22, 2019. (A
copy of the letter is annexed hereto as Exhibit C).
12. As a result of the aforesaid motor vehicle accident, SMITH sought no fault benefits from
the defendants.
13. SMITH assigned her rights to collect no-fault benefits to various health care providers
including the defendants.
14. In addition, SMITH has an independent right to collect no-fault benefits in her own right.
15. The defendants have submitted claims to the plaintiff with an assignment of benefits from
SMITH and alleging that they had rendered services that are compensable under the terms ofthe
policy.
16. The defendants have commenced or have the right to commence actions or arbitrations
against the Plaintiff, in accordance with Article 51 of the Insurance Law for purportedly overdue
no-fault benefits.
17. Pursuant to the no-fault endorsement, American Transit Insurance Company requested
that SMITH appear for an Independent Medical Examination ("IME"). (Copies of the IME
Appointment Letters are annexed as Exhibit D).
18. On March 18, 2019, American Transit Insurance Company and/or itsagent(s), sent to the
Claimant Defendant and her attorney, Harmon, Linder & Rogowsky, at the addresses provided
on the application for benefits and attorney letter of representation, a notice requesting that she
attend an Independent Medical Examination ("IME") on April 30, 2019 at 1:45 PM at the ofEce
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of Dr. Eric Roth located at 2114 Williamsbridge Road, Lower Level Room 110, Bronx, NY
10461.
19. SMITH failed to attend this IME on April 30, 2019.
20. On May 2, 2019 American Transit Insurance Company and/or itsagent(s), sent to the
Claimant Defendant and her attorney, Harmon, Linder & Rogowsky, at the addresses provided
on the application of benefits and attorney letter of representation, a notice requesting that she
appear for an Independent Medical Examination ("IME") on May 21, 2019 at 1:45 PM at the
office of Dr. Michael Russ located at 2114 Williamsbridge Road, Lower Level Room 110,
Bronx, NY 10461.
21. SMITH failed to attend this IME on May 21, 2019.
22. Despite due demand by ATIC, SMITH failed to appear for a properly requested and
scheduled Independent Medical Examiñation resulting in SMITH's breach of a condition
precedent to coverage. (Please see the affidavits of Tracy Simpson, Dr. Eric Roth and Dr.
Michael Russ, annexed as part of Exhibit A and the Denial of Claim Form (NF-10) annexed as
Exhibit E).
PROCEEDINGS TO DATE
23. On or about July 17, 2019, a Summons and Complaint was filed on behalf of ATIC,
seeking a declaratory judgment against the defendants. (A copy of the Summons and Complaiñt
is annexed hereto as part of Exhibit F.)
24. The ANSWERING PROVIDERS, AFFINIT RX INC, appeared by serving answers on or
about June 7, 2020. (Copies ofthe Answers are annexed hereto as part of Exhibit F.)
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25. In its Complaint, ATIC seeks a declaration that SMITH is not an eligible injured person
entitled to no-fault benefits under the Policy, and that ATIC is not obligated to reimburse the
PROVIDERS for alleged medical treatment, therapy and/or medical supplies rendered to
SMITH.
26. As assignees of SMITH, the PROVIDERS acquired no greater right to receive payment
for first party benefits reimbursement than the assignor, SMITH. Under New York law, the
shoes"
PROVIDERS, as assignees, "stand in the of the assignor and thus, acquire no greater
rights that the assignor. See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy. PLLC,
82 A.D.3d 918 N.Y. (15
559, N.Y.S.2d 473, 2011 Slip Op. 01948, Dept., 2011); Long Island
Radiology v Allstate Ins. Co., 36 A.D.3d 763, 830 N.Y.S.2d 192, 194 (2d Dept., 2007); East
Acupuncture, P.C. v AI1state Ins. Co., 61 A.D.3d 202, 873 N.Y.S.2d 335, 342, N.Y.A.D. (2d
Dept., 2009)
27. Consequently, SMITH's breach of a condition precedent to coverage under the Policy
voided the contract ab initio and entitles ATIC to deny payment to both SMITH and SMITH's
assignees. Unitrin Advantage Ins. Co. v. Bayshore Physical Therany. PLLC, 82 A.D.3d 559, 918
(1"
N.Y.S.2d 473, 2011 N.Y. Slip Op. 01948, Dept., 2011).
THE NON-APPEARING DEFENDANTS
28. SMITH and the DEFAULTING PROVIDERS have failed to appear, plead or proceed in
this action and are the subjects of ATIC's instant application for a judgment on default. See the
affidavits of service annexed as Exhibit G.
29. As evidenced and set forth in the Affirmation of Matteo Sandusky, Esq., annexed hereto
as Exhibit H, on June 1, 2020, the defendants were duly served with an additional copy of the
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Summons and Complaint pursuant to CPLR § 3215(g)(3)(i) and CPLR § 3215(g)(4)
respectively. Proper service on all defendants pursuant to the CPLR has been completed.
30. To date, SMITH and the DEFAULTING PROVIDERS have failed to appear, plead, or
proceed in this action. The time set forth by law during which the Defendants were required to
answer and/or appear has since expired, and has not been extended by the Court of by
stipulation.
31. SMITH and the DEFAULTING PROVIDERS are now wholly in default. Accordingly,
ATIC is entitled to a judgment on default against them pursuant to CPLR § 3215
THE APPEARING DEFENDANTS
32. The claimant's failure to comply with the plaintiff's requests rendered the contract void,
ab the plaintiff to a declaration that plaintiff does not owe coverage for the no-
initio, entitling
fault claims allegedly assigned to defendants. See Affidavit of Cheryl Glaze and Luis Campbell
annexed hereto as Exhibit A. Since there are no issues of fact that can be resolved in the
appearing defendant's favor, the plaintiff is entitled to summary judgment. Unitrin Advantage
Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473, 2011 NJ.
Slip Op. 01948, (1st Dept., 2011).
WHEREFORE, Plaintiff AMERICAN TRANSIT INSURANCE COMPANY
respectfully requests that this Honorable Court grant its application for an order: (i) pursuant to
CPLR § 3215, granting ATIC a judgment on default against individual defendant SMITH and the
DEFAULTING PROVIDERS, for failure to answer or appear in this action; ; (ii) pursuant to
CPLR § 3212, granting ATIC summary judgreest against the ANSWERING PROVIDERS, (iii)
ATIC a judgment that SMITH is not an eligible injured person entitled to no-
granting declaratory
fault benefits under ATIC insurance policy CAP615959, Claim No.: 1050148-02, (iv) granting
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ATIC a declaratory judgment that ATIC is not obligated to honor or pay claims for reimbursemed
submitted by the PROVIDERS named herein, as assignees of SMITH, under ATIC insurance
policy CAP615959, Claim No.: 1050148-02, nor is ATIC required to provide, pay, honor or
reimburse any claims set forth herein, in any current or future proceeding, including, without
limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under ATIC
insurance policy CAP615959, Claim No.: 1050148-02 from the alleged accident of January 27,
2019, involving SMITH as SMITH is not an eligible injured person as defined by the Policy and/or
New York State Regulation 68; (v) a declaratory judgment that ATIC is not required to provide,
pay, or honor any current or future claim for no-fault benefits underthe Mandatory Personal Injury
Protection endorsement under ATIC insurance policy CAP615959, Claim No.: 1050148-02, nor
is ATIC required to provide, pay, honor or reimburse any claims set forth herein, in any current or
future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover
no-fault benefits arising under ATIC insurance policy CAP615959, Claim No.: 1050148-02from
the alleged accident of January 27, 2019, involving SMITH as SMITH is not an eligible injured
person as defined by the Policy and/or New York State Regulation 68; and (v) for such other and
further relief as this court deems just, proper and equitable.
Dated: Brooklyn, New York
June 9, 2020 DANIEL PASSER, ESQ.
The Law Office of Daniel J. Tucker
Attorneys for Plaintiff
AMERICAN TRANSIT INSURANCE COMPANY
701
1 MetroTech Center, Floor
Brooklyn, NY 11201
(212) 857-8200
Claim #: 1050148-02
File #: 202734
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FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---···------- -- ----····-····-······-----···- ¬-----X AMERICAN TRANSIT INSURANCE COMPANY, Index #: 157032/2019 Plaintiff, AFFIRMATION IN SUPPORT -against- LAMERIA SMITH, AFFINITY RX INC., APS CHIROPRACTIC SERVICES, P.C., EDEN MEDICAL, P.C., HEALTHWISE MEDICAL ASSOCIATES P.C., MEDAID RADIOLOGY, LLC, MEDICAL SUPPLY OF NY CORP, MOLNAR MEDICAL SERVICES, PC, NOURSEEN P.T. P.C, NYC CARE CHIROPRACTIC, PC, SOLOMON HALIOUA, MD, WELLNESS PHYSICAL THERAPY REHABILITATION P.L.L.C, ZU RIVER ACUPUNCTURE P.C. Defendants. .. __...·------------··- ---------------------X DANIEL PASSER, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms, pursuant to CPLR § 2106, under penalties of perjury as follows: 1. I am the attorney of record for the Plaintiff, AMERICAN TRANSIT INSURANCE "ATIC" COMPANY (hereinafter or "AMERICAN TRANSIT"), and as such, am fully familiar with the facts and circumstances ofthe within matter. 2. As such, I am fully familiar with the facts and circumstances set forth herein. I make this affirmation based upon personal knowledge, where applicable, and upon a review of the file maintained in our office. Reference is also made to the Affidavit of Merit of CHERYL GLAZE, the No-Fault Claims Sueprvisor employed by ATIC at all relevant times annexed as Exhibit A. 1 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 3. This affirmation is submitted in support of ATIC's application for an order: (i)pursuant to CPLR § 3215, granting ATIC a judgment on default against individual LAMERIA SMITH (hereinafter "SMITH") and co-defendants, AFFINITY RX INC., APS CHIROPRACTIC SERVICES, P.C., EDEN MEDICAL, P.C., HEALTHWISE MEDICAL ASSOCIATES P.C., MEDAID RADIOLOGY, LLC, MEDICAL SUPPLY OF NY CORP, MOLNAR MEDICAL SERVICES, PC, NOURSEEN P.T. P.C, NYC CARE CHIROPRACTIC, PC, SOLOMON HALIOUA, MD, WELLNESS PHYSICAL THERAPY REHABILITATION P.L.L.C, ZU RIVER ACUPUNCTURE P.C. (the "DEFAULTING PROVIDERS"), for failure to answer or appear in this action; (ii)pursuant to CPLR § 3212, granting ATIC summary judgment against PROVIDERS");2 defendants, AFFINITY RX INC., ("ANSWERING (iii) granting ATIC a declaratory judgment that SMITH is not an eligible injured person entitled to no-fault benefits under ATIC insurance policy CAP615959, Claim No.: 1050148-02, (iv) granting ATIC a declaratory judgment that ATIC is not obligated to honor or pay claims for reimbursement submitted by the PROVIDERS named herein, as assignees of SMITH, under ATIC insurance policy CAP615959, Claim No.: 1050148-02, nor is ATIC required to provide, pay, honor or reimburse any claims set forth herein, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under ATIC insurance policy CAP615959, Claim No.: 1050148-02 from the alleged accident of January 27, 2019, involving SMITH as SMITH is not an eligible injured person as defined by the Policy and/or New York State Regulation 68; (iv) a declaratory judgment that ATIC is not required to provide, pay, or honor any current or future claim for no-fault benefits under the Mandatory Personal Injury Protection endorsement under ATIC insurance policy CAP615959, Claim No.: 1050148-02, nor 2 "PROVIDERS." DEFAULTING PROVIDERS and ANSWERING PROVIDERS are referred to collectivelyherein as the 2 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 is ATIC required to provide, pay, honor or reimburse any claims set forth herein, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under ATIC insurance policy CAP615959, Claim No.: 1050148-02 from the alleged accident of January 27, 2019, involving SMITH as SMITH is not an eligible injured person as defined by the Policy and/or New York State Regulation 68; and (v) for such other and further relief as this court deems just, proper and equitable. FACTS AND BACKGROUND 4. ATIC issued a policy of insurance to itsinsured RIGO LIMO-AUTO CORP, under a New York policy of insurance numbered CAP615959. (A copy of the Policy is annexed hereto as Exhibit B). 5. The of insurance that ATIC issued to RIGO LIMO-AUTO CORP included a no- policy fault endorsement which provided coverage to an insured or an eligible injured person in the amnunt of $50,000 for allnecessary expenses resulting from a motor vehicle accident, and was in effect on January 27, 2019, as noted below. 6. The policy of insurance contained the mandatory no-fault endorsement prescribed by the New York State Insurance Department which started in part: MANDATORY PERSONAL INJURY PROTECTION ENDORSEMENT NEW YORK SECTION 1 - MANDATORY PERSONAL INJURY PROTECTION The Company will pay first party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by the an accident arising out ofthe use or operation of a motor vehicle or a motorcycle during the policy and within the United States of America, itsterritories of possessions, or Canada. 3 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 7. The applicable no-fault statute permits insurers to request an Independent Medical Examination. Specifically, New York Codes of Rules and Regulations 65-1.1 provides in pertinent part: CONDITIONS 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. Upon request by the Company, the eligible injured person or that person's assignee or representative shall: (a) Execute a written proof of oath; (b) As may reasonably be required to 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. 8. The Policy and New York Insurance Regulation 68 further provide that: The eligible injured person shall submit to an independent medical examination by physician's selected by, or acceptable to, the Company when, and as often as, the Company may reasonably require. 9. On January 27, 2019, a vehicle owned by the insured RIGO LIMO-AUTO CORP was allegedly involved in a motor vehicle accident. The claimant, SMITH was allegedly a a passenger in the insured vehicle in the vehicle and made a claim to the Plaintiff, AMERICAN TRANSIT, as a purported eligible injured person of the above-referenced insurance policy, to the plaintiff under claim # 1050148-02. 10. AMERICAN TRANSIT, received notice of the subject accident from SMITH. 11. AMERICAN TRANSIT, received a New York Motor Vehicle No-Fault Insurance Law Application for Motor Vehicle No-Fault Benefits (NF-2) on February 22, 2019 from and on 4 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 behalf of individual defendant SMITH, claiming benefits under the policy. (A copy of the NF-2 is annexed as Exhibit C). In addition, AMERICAN TRANSIT received a letter of representation from SMITH's attorney, Harmon, Linder & Rogowsky, on February 22, 2019. (A copy of the letter is annexed hereto as Exhibit C). 12. As a result of the aforesaid motor vehicle accident, SMITH sought no fault benefits from the defendants. 13. SMITH assigned her rights to collect no-fault benefits to various health care providers including the defendants. 14. In addition, SMITH has an independent right to collect no-fault benefits in her own right. 15. The defendants have submitted claims to the plaintiff with an assignment of benefits from SMITH and alleging that they had rendered services that are compensable under the terms ofthe policy. 16. The defendants have commenced or have the right to commence actions or arbitrations against the Plaintiff, in accordance with Article 51 of the Insurance Law for purportedly overdue no-fault benefits. 17. Pursuant to the no-fault endorsement, American Transit Insurance Company requested that SMITH appear for an Independent Medical Examination ("IME"). (Copies of the IME Appointment Letters are annexed as Exhibit D). 18. On March 18, 2019, American Transit Insurance Company and/or itsagent(s), sent to the Claimant Defendant and her attorney, Harmon, Linder & Rogowsky, at the addresses provided on the application for benefits and attorney letter of representation, a notice requesting that she attend an Independent Medical Examination ("IME") on April 30, 2019 at 1:45 PM at the ofEce 5 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 of Dr. Eric Roth located at 2114 Williamsbridge Road, Lower Level Room 110, Bronx, NY 10461. 19. SMITH failed to attend this IME on April 30, 2019. 20. On May 2, 2019 American Transit Insurance Company and/or itsagent(s), sent to the Claimant Defendant and her attorney, Harmon, Linder & Rogowsky, at the addresses provided on the application of benefits and attorney letter of representation, a notice requesting that she appear for an Independent Medical Examination ("IME") on May 21, 2019 at 1:45 PM at the office of Dr. Michael Russ located at 2114 Williamsbridge Road, Lower Level Room 110, Bronx, NY 10461. 21. SMITH failed to attend this IME on May 21, 2019. 22. Despite due demand by ATIC, SMITH failed to appear for a properly requested and scheduled Independent Medical Examiñation resulting in SMITH's breach of a condition precedent to coverage. (Please see the affidavits of Tracy Simpson, Dr. Eric Roth and Dr. Michael Russ, annexed as part of Exhibit A and the Denial of Claim Form (NF-10) annexed as Exhibit E). PROCEEDINGS TO DATE 23. On or about July 17, 2019, a Summons and Complaint was filed on behalf of ATIC, seeking a declaratory judgment against the defendants. (A copy of the Summons and Complaiñt is annexed hereto as part of Exhibit F.) 24. The ANSWERING PROVIDERS, AFFINIT RX INC, appeared by serving answers on or about June 7, 2020. (Copies ofthe Answers are annexed hereto as part of Exhibit F.) 6 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 25. In its Complaint, ATIC seeks a declaration that SMITH is not an eligible injured person entitled to no-fault benefits under the Policy, and that ATIC is not obligated to reimburse the PROVIDERS for alleged medical treatment, therapy and/or medical supplies rendered to SMITH. 26. As assignees of SMITH, the PROVIDERS acquired no greater right to receive payment for first party benefits reimbursement than the assignor, SMITH. Under New York law, the shoes" PROVIDERS, as assignees, "stand in the of the assignor and thus, acquire no greater rights that the assignor. See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy. PLLC, 82 A.D.3d 918 N.Y. (15 559, N.Y.S.2d 473, 2011 Slip Op. 01948, Dept., 2011); Long Island Radiology v Allstate Ins. Co., 36 A.D.3d 763, 830 N.Y.S.2d 192, 194 (2d Dept., 2007); East Acupuncture, P.C. v AI1state Ins. Co., 61 A.D.3d 202, 873 N.Y.S.2d 335, 342, N.Y.A.D. (2d Dept., 2009) 27. Consequently, SMITH's breach of a condition precedent to coverage under the Policy voided the contract ab initio and entitles ATIC to deny payment to both SMITH and SMITH's assignees. Unitrin Advantage Ins. Co. v. Bayshore Physical Therany. PLLC, 82 A.D.3d 559, 918 (1" N.Y.S.2d 473, 2011 N.Y. Slip Op. 01948, Dept., 2011). THE NON-APPEARING DEFENDANTS 28. SMITH and the DEFAULTING PROVIDERS have failed to appear, plead or proceed in this action and are the subjects of ATIC's instant application for a judgment on default. See the affidavits of service annexed as Exhibit G. 29. As evidenced and set forth in the Affirmation of Matteo Sandusky, Esq., annexed hereto as Exhibit H, on June 1, 2020, the defendants were duly served with an additional copy of the 7 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 Summons and Complaint pursuant to CPLR § 3215(g)(3)(i) and CPLR § 3215(g)(4) respectively. Proper service on all defendants pursuant to the CPLR has been completed. 30. To date, SMITH and the DEFAULTING PROVIDERS have failed to appear, plead, or proceed in this action. The time set forth by law during which the Defendants were required to answer and/or appear has since expired, and has not been extended by the Court of by stipulation. 31. SMITH and the DEFAULTING PROVIDERS are now wholly in default. Accordingly, ATIC is entitled to a judgment on default against them pursuant to CPLR § 3215 THE APPEARING DEFENDANTS 32. The claimant's failure to comply with the plaintiff's requests rendered the contract void, ab the plaintiff to a declaration that plaintiff does not owe coverage for the no- initio, entitling fault claims allegedly assigned to defendants. See Affidavit of Cheryl Glaze and Luis Campbell annexed hereto as Exhibit A. Since there are no issues of fact that can be resolved in the appearing defendant's favor, the plaintiff is entitled to summary judgment. Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473, 2011 NJ. Slip Op. 01948, (1st Dept., 2011). WHEREFORE, Plaintiff AMERICAN TRANSIT INSURANCE COMPANY respectfully requests that this Honorable Court grant its application for an order: (i) pursuant to CPLR § 3215, granting ATIC a judgment on default against individual defendant SMITH and the DEFAULTING PROVIDERS, for failure to answer or appear in this action; ; (ii) pursuant to CPLR § 3212, granting ATIC summary judgreest against the ANSWERING PROVIDERS, (iii) ATIC a judgment that SMITH is not an eligible injured person entitled to no- granting declaratory fault benefits under ATIC insurance policy CAP615959, Claim No.: 1050148-02, (iv) granting 8 of 9 FILED: NEW YORK COUNTY CLERK 07/30/2020 03:38 PM INDEX NO. 157032/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 07/30/2020 ATIC a declaratory judgment that ATIC is not obligated to honor or pay claims for reimbursemed submitted by the PROVIDERS named herein, as assignees of SMITH, under ATIC insurance policy CAP615959, Claim No.: 1050148-02, nor is ATIC required to provide, pay, honor or reimburse any claims set forth herein, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under ATIC insurance policy CAP615959, Claim No.: 1050148-02 from the alleged accident of January 27, 2019, involving SMITH as SMITH is not an eligible injured person as defined by the Policy and/or New York State Regulation 68; (v) a declaratory judgment that ATIC is not required to provide, pay, or honor any current or future claim for no-fault benefits underthe Mandatory Personal Injury Protection endorsement under ATIC insurance policy CAP615959, Claim No.: 1050148-02, nor is ATIC required to provide, pay, honor or reimburse any claims set forth herein, in any current or future proceeding, including, without limitation, arbitrations and/or lawsuits seeking to recover no-fault benefits arising under ATIC insurance policy CAP615959, Claim No.: 1050148-02from the alleged accident of January 27, 2019, involving SMITH as SMITH is not an eligible injured person as defined by the Policy and/or New York State Regulation 68; and (v) for such other and further relief as this court deems just, proper and equitable. Dated: Brooklyn, New York June 9, 2020 DANIEL PASSER, ESQ. The Law Office of Daniel J. Tucker Attorneys for Plaintiff AMERICAN TRANSIT INSURANCE COMPANY 701 1 MetroTech Center, Floor Brooklyn, NY 11201 (212) 857-8200 Claim #: 1050148-02 File #: 202734 9 of 9