Preview
FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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LIBERTY MUTUAL INSURANCE COMPANY
and LM GENERAL INSURANCE COMPANY,
Plaintiffs PLAINTIFF’S OPPOSITION
TO CROSS-MOTION OF AK
-against - GLOBAL SUPPLY CORP. and
FURTHER SUPPORT OF
KENDON THOMAS, SUMMARY JUDGMENT
"Individual Defendant" MOTION
-and-
Index No. 654092/2019
AMRO CARE PT, P.C.,
LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C.,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA CUSTOM SUPPLY INC.,
OPUS PSYCHOLOGICAL SERVICES P.C.,
SI ACUPUNCTURE, PC.,
METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL I, PLLC,
MAURO CHIROPRACTIC P.C.,
HARBOR MEDICAL GROUP PC,
ACUTUS RX, LLC,
AK GLOBAL SUPPLY CORP,
"Medical Provider Defendants"
collectively, the Defendants.
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Asher Grossman, Esq., an attorney duly admitted to practice before the Courts of the State
of New York, hereby affirms the following under penalties of perjury and pursuant to CPLR 2106:
1. I am associated with Burke, Conway & Stiefeld, attorneys for the Plaintiffs and as such,
am fully familiar with the facts and circumstances set forth herein based upon a review of the file
maintained by this office.
2. This Affirmation is respectfully submitted in Opposition to the Cross-Motion filed by AK
Defendant GLOBAL SUPPLY CORP. on August 10, 2020 and in further support of Plaintiffs’ Motion
for Summary Judgment.
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3. Plaintiffs respectfully submit that the record herein establishes their entitlement to
Summary Judgment against Defendant AK GLOBAL SUPPLY CORP. based on the merits of the case,
the pleadings herein, and the exhibits attached to their Motion.
4. Plaintiffs point out that the law firm of Kopelevich & Feldsherova, PC filed an Answer
on behalf of AK GLOBAL SUPPLY CORP. on October 25, 2019 and The Rybak Firm PLLC filed an
Answer on behalf of AK GLOBAL SUPPLY CORP. on January 13, 2020. As such, Plaintiffs are not
sure which firm actually represents Defendant AK GLOBAL SUPPLY CORP. and leave this matter to
the Court.
DEFENDANT AK GLOBAL SUPPLY CORP.’S MOTION TO VACATE THE
DEFAULT JUDGMENT AND COMPEL PLAINTIFFS TO ACCEPT THEIR LATE
ANSWER OR DEEM THEIR LATE ANSWER TIMELY SERVED
SHOULD BE DENIED
5. The underlying action is for a declaration to nullify any and all No-Fault benefits allegedly
due to any of the Medical Provider Defendants on assignment from the Individual Defendant, Kendon
Thomas (hereinafter, “Thomas”) due to Kendon Thomas’ failure to complete a condition precedent to
coverage and attend an Examination under Oath.
6. This action arises out of claims for No-Fault reimbursement stemming from a motor
vehicle accident involving Individual Defendant, Kendon Thomas on July 5, 2018.
7. Contrary to allegation in Defendant AK GLOBAL SUPPLY CORP.’s Cross-Motion that
AK Global Supply Corp. was served on August 7, 2019 via the Secretary of State, Defendant was actually
served with the Summons and Complaint on July 29, 2019 via the Secretary of State. Copies of the
affidavits of service for service of the Summons and Complaint upon Defendant is annexed to Plaintiffs’
underlying Motion for Default as Exhibit “B”.
8. Pursuant to CPLR § 3215 (g)(4)(i),Defendant AK GLOBAL SUPPLY CORP was
additionally served via first class U.S. Mail to their addresses of record on July 22, 2019. The addresses
included 2478 Coney Island Ave., Brooklyn, New York 11223, Defendant’s address listed with the
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Department of State; and PO Box 290702, Brooklyn, New York, 11229, the address directly provided by
Defendant to Plaintiffs for payment of their bills.
9. As such, an Answer was due from this Defendant by August 29, 2019 at the latest.
Nevertheless, Kopelevich & Feldsherova, PC filed a Late Answer on behalf of AK GLOBAL SUPPLY
CORP. on October 25, 2019 – nearly two months late.
10. It is disingenuous of Defendant to provide to Plaintiffs a mailing address for receipt of
payments and yet allege that they do not receive the mail that is sent to that address.
11. It is also disingenuous of Defendant to allege that it did not receive the Summons and
Complaint until October 17, 2019, when Plaintiffs have certified via their Exhibit “C” to the underlying
Motion for Default that service pursuant to CPLR § 3215 (g)(4)(i) was effected to both of Defendant’s
addresses on July 22, 2019.
12. Thus, even if the Secretary of State did not serve Defendants immediately upon receipt of
the Summons and Complaint, as Defendant alleges in its Cross-Motion, Defendant received the
Summons and Complaint shortly after July 22, 2019 via service by mail to their addresses of record
pursuant to CPLR § 3215 (g)(4)(i) and the Business Corporation Law §306.
13. Defendant’s bare assertion that it did not receive the Summons and Complaint in a timely
manner in this matter is insufficient to defeat Default in this matter. “An unsubstantiated excuse of non-
receipt is insufficient to rebut the presumption of proper service created by an affidavit of service (see
General Motors Acceptance Corp. v. Grade A Auto Body, 21 A.D.3d 447, 799 N.Y.S.2d 748; 282 96 Pierrepont v.
Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468; Truscello v. Olympia Constr., 294 A.D.2d 350, 351, 741 N.Y.S.2d
709).” Town House St., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 AD3d 893, 894 [2d
Dept 2006].
14. It is patently disingenuous for Defendant to now claim that it never received the
Summons and Complaint until October 17, 2019 since at least two copies of the summons and complaint
were sent to Defendant at the addresses it provided to Plaintiffs in July, 2019.
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15. Plaintiffs have not accepted Defendant’s Late Answer. Prior to Defendant AK GLOBAL
SUPPLY CORP. requesting the Court compel Plaintiffs to accept its untimely answer, Plaintiffs filed
their Default Judgment motion wherein they denied acceptance of AK GLOBAL SUPPLY CORP.’s late
answer and requested default against this Defendant (see underlying Motion at ¶19). Therefore, Plaintiffs
did not waive their objection as to the timeliness of AK GLOBAL SUPPLY CORP.’s answer.
16. AK GLOBAL SUPPLY CORP. did not request from Plaintiffs nor from the Court an
extension of time within which to file its answer. Instead, AK GLOBAL SUPPLY CORP. cross-moved
the Court after the filing of a summary judgment motion against them wherein Plaintiffs had already
rejected its untimely answer.
17. CPLR 3012(d) provides that an extension of time to serve an answer may be granted by
the Court “…upon such terms as may be just and upon a showing of reasonable excuse for delay or
default.” Not every law office failure will justify an exercise of discretion in favor of the delinquent
attorney’s client. Incorporated Village of Hempstead v. Jablonsky, 2001, 283 A.D.2d 553, 725 N.Y.S2d
76 (2d Dep’t) (“…mere neglect will not be accepted as a reasonable excuse”). Assertions concerning law
office failure must be supported by factual details. Bravo v. new York City House. Auth., 253 A.D.2d
510, 676 N.Y.S.2d 871 (“law office failure, without supporting facts to explain and justify the default, is
insufficient to establish an excusable default.”).
18. Plaintiffs’ underlying Motion and the exhibits annexed thereto therefore establish via
admissible evidence every element required for entry of Summary Judgment against this Defendant.
19. While itis true Plaintiffs never specifically rejected Defendant’s late answer, there is no
court rule that requires that be performed.
20. It is also true that Defendant does not have a viable defense to this matter on its merits.
In deciding whether the court will extend the time to appear and plead or compel acceptance of an
answer untimely filed, the court will “weigh the length of the delay, the excuse offered, the extent to
which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any
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defense when they consider Defendant’s motion. See Emigrant Bank v. Rosabianca, 156 A.D.3d 468,
472-73, 67 N.Y.S.3d 175, 180-81 (1st Dep’t 2017).
21. A defendant seeking to vacate a default judgment on the ground of excusable default
bears the burden of demonstrating both a justifiable excuse for the default and a meritorious defense (see
Zino v. Joab Taxi, Inc., 20 AD3d 521 [2d Dept. 2005]).
22. Importantly, in 2012, the Supreme Court, Appellate Division, First Department held:
“In order to successfully oppose a [motion for a] default judgment, a defendant must
demonstrate a justifiable excuse for his default and a meritorious defense” (ICBC
Broadcast Holdings–NY, Inc. v. Prime Time Adv., Inc., 26 A.D.3d 239, 240, 810 N.Y.S.2d
40 [2006] ). “[W]hether there isa reasonable excuse for a default is a discretionary,
sui generis determination to be made by the court based on all relevant factors,
including the extent of the delay, whether there has been prejudice to the opposing
party, whether there has been willfulness, and the strong public policy in favor of
resolving cases on the merits”.
New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012],
citing Rickert v. Chestara, 56 A.D.3d 941, 942, 867 N.Y.S.2d 262 [2008] [internal
quotation marks omitted]; and Finkelstein v. Sunshine, 47 A.D.3d 882, 852 N.Y.S.2d
168 [2008] ).
23. Defendant AK GLOBAL SUPPLY CORP. has set forth no justifiable excuse to
submit their Late Answer.
24. Further, Defendant, as an assignee of the Individual Defendant Thomas, has no
legitimate defense against Plaintiffs’ default motion as it is not entitled to compensation from
Plaintiffs due to the Individual Defendant’s failure to comply with conditions precedent to coverage
under the insurance agreement.
25. Defendant failed to timely answer the allegations contained in the properly served
pleadings. Plaintiffs therefore are entitled under CPLR § 3215 to a default judgment against it for its
failure to timely answer.
26. It is patently clear that Defendant does not have a meritorious defense to the facts of
this matter based on the documents and case law more fully set forth in Plaintiffs’ Motion for
Summary Judgment.
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27. Therefore, pursuant to the New Media Holding Co. case, even if Plaintiffs replied to
AK Global Supply Corp.’s counterclaim out of an abundance of caution, AK Global Supply Corp.
does not have a reasonable excuse for their late answer/default nor a meritorious defense pursuant
to the facts of this matter based on Plaintiffs’ showing as a matter of law that Individual Defendant
Desrameaux failed to attend an Examination under Oath which is a condition precedent to
coverage. Please note that the New Media Holding Co. case is from the First Department.
28. The First Department is very consistent in its rulings on this issue. In Berardelli v
Novo Law Firm P.C., 179 AD3d 577, 578 [1st Dept 2020], a very recent (January 23, 2020) case that
cites New Media Holding Co., the First Department upheld the motion court’s exercise of discretion
to deny Plaintiffs’ motion for a default judgment because Plaintiff had moved for default only one
day after defendant’s time to appear had expired, defendant had timely responded to the Motion for
Default, and Defendant had presented a meritorious defense. See Annexed hereto as Exhibit “A”.
29. Pursuant to that opinion, Plaintiff points out that it filed for Default and Summary
Judgment on July 14, 2020, 363 days after filing the Summons and Complaint and 320 days after
Defendant’s time to appear and file a timely answer had expired. Plaintiffs acknowledge that there is
a strong public policy favoring litigation of claims on their merits. However, in this matter,
Defendant does not have a meritorious defense pursuant to the case law cited herein and more
completely developed in Plaintiffs’ underlying Motion for Default and Summary Judgment regarding
assignors having the same rights as their assignee (see also, below), which in this case, is none due to
the Individual Defendant’s failure to attend an Examination under Oath as a condition precedent to
coverage. As such, requiring Plaintiffs to accept Defendant’s late answer would have no point,
because Defendant cannot establish facts that would lead to a positive outcome for it.
30. In DTG Operations, Inc. v Excel Imaging, P.C., 119 AD3d 410 [1st Dept 2014],
another case citing New Media Holding Co., the First Department reversed the trial court who had
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granted Defendants’ motion to vacate default judgment because they did not offer a reasonable
excuse for default and had no meritorious defense to the suit. See Annexed hereto as Exhibit “B”.
31. Further, for the reasons fully articulated in the underlying Motion, Plaintiffs
respectfully submit that the record herein establishes their entitlement to Summary Judgment against
the Defendant via the exhibits annexed to their underlying Motion.
32. As such, Plaintiffs have submitted sufficient admissible documentary proof,
demonstrated their entitlement to judgment as a matter of law of the merits of their legitimate cause
of action against Defendant with regard to the subject alleged incident.
PLAINTIFFS HAVE SATISFIED THE STANDARDS FOR SUMMARY JUDGMENT
33. The No-Fault reimbursement laws of the State of New York permit the insurer to
disallow payments for medical bills for which there is no coverage and permit insurers to conduct a
reasonable investigation and require Examinations under Oath of the parties to determine the legitimacy
of the claims.
34. The EUO requirement is a condition precedent to coverage, as set forth in Plaintiffs’
underlying Motion.
35. In this matter, an investigation into the claim was begun due to the high amount of billing
received following a minor accident, as attested to by Plaintiffs’ Investigator. As part of the investigation,
Individual Defendant Thomas was asked to appear for an Examination under Oath (EUO).
36. As set forth more completely in the underlying moving papers, Thomas failed to appear
for EUOs on September 17, 2018, October 4, 2018, October 25, 2018, and November 2, 2018. The
EUO on October 25, 2018 was rescheduled; but Thomas did not appear for the remaining scheduled
EUO.
37. Based on this failure to appear for the Examinations Under Oath, Plaintiffs timely denied
all bills submitted by the Medical Provider Defendants.
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38. Plaintiffs have established their right to summary judgment by tendering sufficient
evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct
judgment in the Plaintiffs’ favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d
1065, 416 N.Y.S.2d 790 (1979). The evidence includes EUO No-Show Statements on the Record, the
affirmed EUO Scheduling Letters to the Claimant, the affirmation of the attorney who appeared for the
Examinations under Oath, the affirmed affidavits of Plaintiffs’ investigator, claims representative and
underwriter, and the Denials issued to the Defendant. This evidence is overwhelming. Plaintiffs have met
their burden of proof.
39. Plaintiffs’ Motion for Default and Summary Judgment has been submitted to Judge
Bannon and has been adjourned to September 18, 2020.
WHEREFORE, Plaintiffs LIBERTY MUTUAL INSURANCE COMPANY and LM
GENERAL INSURANCE COMPANY respectfully request that their Motion for Default and Summary
Judgment is GRANTED, and for any other relief this Court deems just and proper.
DATED: WHITE PLAINS, NEW YORK
AUGUST 26, 2020
Yours etc.,
Asher Grossman, Esq.
BURKE, CONWAY & STIEFELD
Attorneys for Plaintiffs
LIBERTY MUTUAL INS. CO. ET AL.
10 Bank Street, Suite 1200
White Plains, NY 10606
914-997-8100
TO: David Landfair, Esq.
KOPELEVICH & FELDSHEROVA
Attorney for Defendant
AK GLOBAL SUPPLY CORP.
241 37th Street, Suite B439
Brooklyn, NY 11232
718-332-0577
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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LIBERTY MUTUAL INSURANCE COMPANY
and LM GENERAL INSURANCE COMPANY,
Plaintiffs CERTIFICATION
PURSUANT TO 22 NYCRR
-against - §130-1.1(a)
KENDON THOMAS, Index No. 654092/2019
"Individual Defendant"
-and-
AMRO CARE PT, P.C.,
LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C.,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA CUSTOM SUPPLY INC.,
OPUS PSYCHOLOGICAL SERVICES P.C.,
SI ACUPUNCTURE, PC.,
METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL I, PLLC,
MAURO CHIROPRACTIC P.C.,
HARBOR MEDICAL GROUP PC,
ACUTUS RX, LLC,
AK GLOBAL SUPPLY CORP,
"Medical Provider Defendants"
collectively, the Defendants.
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THE FOLLOWING PAPERS ARE HEREBY CERTIFIED:
PLAINTIFF’S OPPOSITION TO CROSS-MOTION FILED BY AK GLOBAL SUPPLY CORP.
and FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT
DATED: WHITE PLAINS, NEW YORK
AUGUST 26, 2020
Yours etc.,
Asher Grossman, Esq.
BURKE, CONWAY & STIEFELD
Attorneys for Plaintiffs
10 Bank Street, Suite 1200
White Plains, NY 10606
914-997-8100
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Preview
FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiffs PLAINTIFF’S OPPOSITION TO CROSS-MOTION OF AK -against - GLOBAL SUPPLY CORP. and FURTHER SUPPORT OF KENDON THOMAS, SUMMARY JUDGMENT "Individual Defendant" MOTION -and- Index No. 654092/2019 AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C., NORTH SHORE HOME CARE SERVICES, INC., AVA CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL SERVICES P.C., SI ACUPUNCTURE, PC., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC, MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP, "Medical Provider Defendants" collectively, the Defendants. --------------------------------------------------------------------x Asher Grossman, Esq., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following under penalties of perjury and pursuant to CPLR 2106: 1. I am associated with Burke, Conway & Stiefeld, attorneys for the Plaintiffs and as such, am fully familiar with the facts and circumstances set forth herein based upon a review of the file maintained by this office. 2. This Affirmation is respectfully submitted in Opposition to the Cross-Motion filed by AK Defendant GLOBAL SUPPLY CORP. on August 10, 2020 and in further support of Plaintiffs’ Motion for Summary Judgment. 1 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 3. Plaintiffs respectfully submit that the record herein establishes their entitlement to Summary Judgment against Defendant AK GLOBAL SUPPLY CORP. based on the merits of the case, the pleadings herein, and the exhibits attached to their Motion. 4. Plaintiffs point out that the law firm of Kopelevich & Feldsherova, PC filed an Answer on behalf of AK GLOBAL SUPPLY CORP. on October 25, 2019 and The Rybak Firm PLLC filed an Answer on behalf of AK GLOBAL SUPPLY CORP. on January 13, 2020. As such, Plaintiffs are not sure which firm actually represents Defendant AK GLOBAL SUPPLY CORP. and leave this matter to the Court. DEFENDANT AK GLOBAL SUPPLY CORP.’S MOTION TO VACATE THE DEFAULT JUDGMENT AND COMPEL PLAINTIFFS TO ACCEPT THEIR LATE ANSWER OR DEEM THEIR LATE ANSWER TIMELY SERVED SHOULD BE DENIED 5. The underlying action is for a declaration to nullify any and all No-Fault benefits allegedly due to any of the Medical Provider Defendants on assignment from the Individual Defendant, Kendon Thomas (hereinafter, “Thomas”) due to Kendon Thomas’ failure to complete a condition precedent to coverage and attend an Examination under Oath. 6. This action arises out of claims for No-Fault reimbursement stemming from a motor vehicle accident involving Individual Defendant, Kendon Thomas on July 5, 2018. 7. Contrary to allegation in Defendant AK GLOBAL SUPPLY CORP.’s Cross-Motion that AK Global Supply Corp. was served on August 7, 2019 via the Secretary of State, Defendant was actually served with the Summons and Complaint on July 29, 2019 via the Secretary of State. Copies of the affidavits of service for service of the Summons and Complaint upon Defendant is annexed to Plaintiffs’ underlying Motion for Default as Exhibit “B”. 8. Pursuant to CPLR § 3215 (g)(4)(i),Defendant AK GLOBAL SUPPLY CORP was additionally served via first class U.S. Mail to their addresses of record on July 22, 2019. The addresses included 2478 Coney Island Ave., Brooklyn, New York 11223, Defendant’s address listed with the 2 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 Department of State; and PO Box 290702, Brooklyn, New York, 11229, the address directly provided by Defendant to Plaintiffs for payment of their bills. 9. As such, an Answer was due from this Defendant by August 29, 2019 at the latest. Nevertheless, Kopelevich & Feldsherova, PC filed a Late Answer on behalf of AK GLOBAL SUPPLY CORP. on October 25, 2019 – nearly two months late. 10. It is disingenuous of Defendant to provide to Plaintiffs a mailing address for receipt of payments and yet allege that they do not receive the mail that is sent to that address. 11. It is also disingenuous of Defendant to allege that it did not receive the Summons and Complaint until October 17, 2019, when Plaintiffs have certified via their Exhibit “C” to the underlying Motion for Default that service pursuant to CPLR § 3215 (g)(4)(i) was effected to both of Defendant’s addresses on July 22, 2019. 12. Thus, even if the Secretary of State did not serve Defendants immediately upon receipt of the Summons and Complaint, as Defendant alleges in its Cross-Motion, Defendant received the Summons and Complaint shortly after July 22, 2019 via service by mail to their addresses of record pursuant to CPLR § 3215 (g)(4)(i) and the Business Corporation Law §306. 13. Defendant’s bare assertion that it did not receive the Summons and Complaint in a timely manner in this matter is insufficient to defeat Default in this matter. “An unsubstantiated excuse of non- receipt is insufficient to rebut the presumption of proper service created by an affidavit of service (see General Motors Acceptance Corp. v. Grade A Auto Body, 21 A.D.3d 447, 799 N.Y.S.2d 748; 282 96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468; Truscello v. Olympia Constr., 294 A.D.2d 350, 351, 741 N.Y.S.2d 709).” Town House St., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 AD3d 893, 894 [2d Dept 2006]. 14. It is patently disingenuous for Defendant to now claim that it never received the Summons and Complaint until October 17, 2019 since at least two copies of the summons and complaint were sent to Defendant at the addresses it provided to Plaintiffs in July, 2019. 3 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 15. Plaintiffs have not accepted Defendant’s Late Answer. Prior to Defendant AK GLOBAL SUPPLY CORP. requesting the Court compel Plaintiffs to accept its untimely answer, Plaintiffs filed their Default Judgment motion wherein they denied acceptance of AK GLOBAL SUPPLY CORP.’s late answer and requested default against this Defendant (see underlying Motion at ¶19). Therefore, Plaintiffs did not waive their objection as to the timeliness of AK GLOBAL SUPPLY CORP.’s answer. 16. AK GLOBAL SUPPLY CORP. did not request from Plaintiffs nor from the Court an extension of time within which to file its answer. Instead, AK GLOBAL SUPPLY CORP. cross-moved the Court after the filing of a summary judgment motion against them wherein Plaintiffs had already rejected its untimely answer. 17. CPLR 3012(d) provides that an extension of time to serve an answer may be granted by the Court “…upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” Not every law office failure will justify an exercise of discretion in favor of the delinquent attorney’s client. Incorporated Village of Hempstead v. Jablonsky, 2001, 283 A.D.2d 553, 725 N.Y.S2d 76 (2d Dep’t) (“…mere neglect will not be accepted as a reasonable excuse”). Assertions concerning law office failure must be supported by factual details. Bravo v. new York City House. Auth., 253 A.D.2d 510, 676 N.Y.S.2d 871 (“law office failure, without supporting facts to explain and justify the default, is insufficient to establish an excusable default.”). 18. Plaintiffs’ underlying Motion and the exhibits annexed thereto therefore establish via admissible evidence every element required for entry of Summary Judgment against this Defendant. 19. While itis true Plaintiffs never specifically rejected Defendant’s late answer, there is no court rule that requires that be performed. 20. It is also true that Defendant does not have a viable defense to this matter on its merits. In deciding whether the court will extend the time to appear and plead or compel acceptance of an answer untimely filed, the court will “weigh the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any 4 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 defense when they consider Defendant’s motion. See Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 472-73, 67 N.Y.S.3d 175, 180-81 (1st Dep’t 2017). 21. A defendant seeking to vacate a default judgment on the ground of excusable default bears the burden of demonstrating both a justifiable excuse for the default and a meritorious defense (see Zino v. Joab Taxi, Inc., 20 AD3d 521 [2d Dept. 2005]). 22. Importantly, in 2012, the Supreme Court, Appellate Division, First Department held: “In order to successfully oppose a [motion for a] default judgment, a defendant must demonstrate a justifiable excuse for his default and a meritorious defense” (ICBC Broadcast Holdings–NY, Inc. v. Prime Time Adv., Inc., 26 A.D.3d 239, 240, 810 N.Y.S.2d 40 [2006] ). “[W]hether there isa reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits”. New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012], citing Rickert v. Chestara, 56 A.D.3d 941, 942, 867 N.Y.S.2d 262 [2008] [internal quotation marks omitted]; and Finkelstein v. Sunshine, 47 A.D.3d 882, 852 N.Y.S.2d 168 [2008] ). 23. Defendant AK GLOBAL SUPPLY CORP. has set forth no justifiable excuse to submit their Late Answer. 24. Further, Defendant, as an assignee of the Individual Defendant Thomas, has no legitimate defense against Plaintiffs’ default motion as it is not entitled to compensation from Plaintiffs due to the Individual Defendant’s failure to comply with conditions precedent to coverage under the insurance agreement. 25. Defendant failed to timely answer the allegations contained in the properly served pleadings. Plaintiffs therefore are entitled under CPLR § 3215 to a default judgment against it for its failure to timely answer. 26. It is patently clear that Defendant does not have a meritorious defense to the facts of this matter based on the documents and case law more fully set forth in Plaintiffs’ Motion for Summary Judgment. 5 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 27. Therefore, pursuant to the New Media Holding Co. case, even if Plaintiffs replied to AK Global Supply Corp.’s counterclaim out of an abundance of caution, AK Global Supply Corp. does not have a reasonable excuse for their late answer/default nor a meritorious defense pursuant to the facts of this matter based on Plaintiffs’ showing as a matter of law that Individual Defendant Desrameaux failed to attend an Examination under Oath which is a condition precedent to coverage. Please note that the New Media Holding Co. case is from the First Department. 28. The First Department is very consistent in its rulings on this issue. In Berardelli v Novo Law Firm P.C., 179 AD3d 577, 578 [1st Dept 2020], a very recent (January 23, 2020) case that cites New Media Holding Co., the First Department upheld the motion court’s exercise of discretion to deny Plaintiffs’ motion for a default judgment because Plaintiff had moved for default only one day after defendant’s time to appear had expired, defendant had timely responded to the Motion for Default, and Defendant had presented a meritorious defense. See Annexed hereto as Exhibit “A”. 29. Pursuant to that opinion, Plaintiff points out that it filed for Default and Summary Judgment on July 14, 2020, 363 days after filing the Summons and Complaint and 320 days after Defendant’s time to appear and file a timely answer had expired. Plaintiffs acknowledge that there is a strong public policy favoring litigation of claims on their merits. However, in this matter, Defendant does not have a meritorious defense pursuant to the case law cited herein and more completely developed in Plaintiffs’ underlying Motion for Default and Summary Judgment regarding assignors having the same rights as their assignee (see also, below), which in this case, is none due to the Individual Defendant’s failure to attend an Examination under Oath as a condition precedent to coverage. As such, requiring Plaintiffs to accept Defendant’s late answer would have no point, because Defendant cannot establish facts that would lead to a positive outcome for it. 30. In DTG Operations, Inc. v Excel Imaging, P.C., 119 AD3d 410 [1st Dept 2014], another case citing New Media Holding Co., the First Department reversed the trial court who had 6 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 granted Defendants’ motion to vacate default judgment because they did not offer a reasonable excuse for default and had no meritorious defense to the suit. See Annexed hereto as Exhibit “B”. 31. Further, for the reasons fully articulated in the underlying Motion, Plaintiffs respectfully submit that the record herein establishes their entitlement to Summary Judgment against the Defendant via the exhibits annexed to their underlying Motion. 32. As such, Plaintiffs have submitted sufficient admissible documentary proof, demonstrated their entitlement to judgment as a matter of law of the merits of their legitimate cause of action against Defendant with regard to the subject alleged incident. PLAINTIFFS HAVE SATISFIED THE STANDARDS FOR SUMMARY JUDGMENT 33. The No-Fault reimbursement laws of the State of New York permit the insurer to disallow payments for medical bills for which there is no coverage and permit insurers to conduct a reasonable investigation and require Examinations under Oath of the parties to determine the legitimacy of the claims. 34. The EUO requirement is a condition precedent to coverage, as set forth in Plaintiffs’ underlying Motion. 35. In this matter, an investigation into the claim was begun due to the high amount of billing received following a minor accident, as attested to by Plaintiffs’ Investigator. As part of the investigation, Individual Defendant Thomas was asked to appear for an Examination under Oath (EUO). 36. As set forth more completely in the underlying moving papers, Thomas failed to appear for EUOs on September 17, 2018, October 4, 2018, October 25, 2018, and November 2, 2018. The EUO on October 25, 2018 was rescheduled; but Thomas did not appear for the remaining scheduled EUO. 37. Based on this failure to appear for the Examinations Under Oath, Plaintiffs timely denied all bills submitted by the Medical Provider Defendants. 7 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 38. Plaintiffs have established their right to summary judgment by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the Plaintiffs’ favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). The evidence includes EUO No-Show Statements on the Record, the affirmed EUO Scheduling Letters to the Claimant, the affirmation of the attorney who appeared for the Examinations under Oath, the affirmed affidavits of Plaintiffs’ investigator, claims representative and underwriter, and the Denials issued to the Defendant. This evidence is overwhelming. Plaintiffs have met their burden of proof. 39. Plaintiffs’ Motion for Default and Summary Judgment has been submitted to Judge Bannon and has been adjourned to September 18, 2020. WHEREFORE, Plaintiffs LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY respectfully request that their Motion for Default and Summary Judgment is GRANTED, and for any other relief this Court deems just and proper. DATED: WHITE PLAINS, NEW YORK AUGUST 26, 2020 Yours etc., Asher Grossman, Esq. BURKE, CONWAY & STIEFELD Attorneys for Plaintiffs LIBERTY MUTUAL INS. CO. ET AL. 10 Bank Street, Suite 1200 White Plains, NY 10606 914-997-8100 TO: David Landfair, Esq. KOPELEVICH & FELDSHEROVA Attorney for Defendant AK GLOBAL SUPPLY CORP. 241 37th Street, Suite B439 Brooklyn, NY 11232 718-332-0577 8 of 9 FILED: NEW YORK COUNTY CLERK 08/27/2020 10:06 AM INDEX NO. 654092/2019 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/27/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiffs CERTIFICATION PURSUANT TO 22 NYCRR -against - §130-1.1(a) KENDON THOMAS, Index No. 654092/2019 "Individual Defendant" -and- AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C., NORTH SHORE HOME CARE SERVICES, INC., AVA CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL SERVICES P.C., SI ACUPUNCTURE, PC., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC, MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP, "Medical Provider Defendants" collectively, the Defendants. --------------------------------------------------------------------x THE FOLLOWING PAPERS ARE HEREBY CERTIFIED: PLAINTIFF’S OPPOSITION TO CROSS-MOTION FILED BY AK GLOBAL SUPPLY CORP. and FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT DATED: WHITE PLAINS, NEW YORK AUGUST 26, 2020 Yours etc., Asher Grossman, Esq. BURKE, CONWAY & STIEFELD Attorneys for Plaintiffs 10 Bank Street, Suite 1200 White Plains, NY 10606 914-997-8100 9 of 9