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NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________________-------------------------------X
PV HOLDING CORP. INCLUDING ALL OF ITS
SUBSIDIARIES AND AFFILIATES, INCLUDING BUT NOT
LIMITED TO AVIS BUDGET, LLC, AVIS CAR RENTAL, Index No.:154477/2018
LLC, BUDGET CAR RENTAL, LLC, BUDGET TRUCK
RENTAL, LLC, PAYLESS CAR RENTAL, INC. and ZIPCAR, AFFIRMATION
INC.,
Plaintiff(s),
-against-
BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE,
STAND-UP MRI OF PROGRESSIVE-
P.C., MANHATTAN, P.C.,
HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C.,
RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE
SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX,
LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP
ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C.,
HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL
ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY,
INC., EMA MEDICAL EQUIPMENT CORP and QURAN DAVIS
Defendant(s).
___..________.. --------------------------------- -X
Vitaly Vilenchik, Esq., an attorney duly licensed to practice law before the
Courts of the State of New York, affirms the following statements to be true upon
information and belief, under the penalty of perjury:
FACTUAL BACKGROUND
1. I am an attorney licensed to practice law in the state of New York and am
associated with the law firm of Rubin, Fiorella & Friedman LLP, attorneys for the
Plaintiff, PV HOLDING CORP. INCLUDING ALL OF ITS SUBSIDIARIES AND
AFFILIATES, INCLUDING BUT NOT LIMITED TO AVIS BUDGET, LLC, AVIS CAR
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RENTAL, LLC, BUDGET CAR RENTAL, LLC, BUDGET TRUCK RENTAL, LLC ,
PAYLESS CAR RENTAL, INC. and ZIPCAR, INC. (hereafter "Avis").
2. This affirmation is submitted in support of the within motion seeking a
default judgment pursuant to CPLR § 3215 against defendants BSS MEDICAL, P.C.,
EAST SIDE PRIMARY MEDICAL CARE, P.C., STAND-UP MRI OF MANHATTAN,
P.C., PROGRESSIVE-HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA
UNITED, INC., SURGICORE, LLC a/k/a SURGICORE SURGICAL CENTER, QB
ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC ADJUSTMENT, P.C.,
HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C., HEALTHCRAFT
P.T., P.C., HEALTHWISE MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY
MEDICAL SUPPLY, INC. and EMA MEDICAL EQUIPMENT CORP based on their
failure to answer the complaint for judgment.1
declaratory
3. Avis's motion seeking a default judgment pursuant to CPLR § 3215
should be granted because Avis has proven service of the Summons and Verified
Complaint, defendants BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE,
P.C., STAND-UP MRI OF MANHATTAN, P.C., PROGRESSIVE-HUDSON
ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE,
LLC a/k/a SURGICORE SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX,
LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS
CHIROPRACTIC SERVICES, P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE
1 Defendants QURAN DAVIS has not been located for service.
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MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC. and
EMA MEDICAL EQUIPMENT CORP (the "Defaulting Defendants") have defaulted in
answering, the facts its claim, and that the defaulting defendants have no
constituting
meritorious defense. A true copy of the Summons and Verified Complaint is annexed as
Exhibit "A". The affidavits of service on the Defendants are attached as
Defaulting
Exhibit "B".
4. Defendant QURAN DAVIS ("the Claimant") was allegedly involved in
an automobile collision on February 13, 2017, while an occupant of a vehicle owned
and self-insured by Avis. All claims of Avis owned and self-insured vehicles are
handled by Sedgwick Claims Management Corporation, a third party administrator.
5. The 13, 2017 collision occurred on Essex Street at or
February allegedly
near its intersection with Rivington Street in New York, New York. The police report
indicates that the alleged collision occurred when the adverse vehicle was making a
left turn and collided with the insured vehicle. The police report further indicates
that the driver of the adverse vehicle had no visible physical injury, refused medical
attention, and that the air bags did not deploy in either vehicle. See Police Report
attached hereto as Exhibit "C".
6. Despite the above facts, the Claimant subsequently reported to have
sustained bodily injuries in the collision. Avis assigned claim number 178007537 to all
claims to the 2017 collision. See the Claimant's Application for No-
relating February 13,
Fault Benefits attached hereto as Exhibit "D".
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7. After the collision occurred, Avis received claims from the Defaulting
Defendants. To date, the Defendants have submitted over tens of thousands
Defaulting
in bills for treatment provided to the Claimant.
allegedly
8. In addition to the sheer magnitude of the claims submitted, the claim's
legitimacy was questionable because the driver of the adverse vehicle did not allege
at the scene of the collision and did not request medical attention. Furthermore,
injury
the damage to the Avis vehicle was minor and the claimant began receiving boilerplate
and excessive medical treatment from numerous medical providers. See Affidavit of
Merit of Amanda Coulthard.
9. That these factors raised a that the treatment submitted
strong possibility
was not related to the 2017 which would be considered non-
causally February 13, loss,
covered events under the No-Fault Regulations.
10. Based upon these factors, Avis, pursuant to its rights under the No-Fault
Regulations, and sought independent medical examinations ("IMEs") of
duly properly
the Claimant to confirm the of this loss and the necessity of any alleged
legitimacy
treatment and referrals.
11. Despite due demand, the Claimant failed to appear for his IMEs on
January 16, 2018 and February 24, 2018, which was a violation of a condition precedent
to coverage for all No-Fault claims submitted, and Avis has duly denied the claims of
the defendants on this basis. See IME notices attached hereto as Exhibit "E". See also
Affidavits of Amanda Coulthard, Catherine Donovan and Ji Hoon Kim, D.C., L.Ac.
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12. Avis denied all claims submitted of the defendants on that basis. See
Affidavits of Amanda Coulthard, Catherine Donovan and Ji Hoon Kim, D.C., L.Ac.
13. Furthermore, the IME scheduling letters were timely and properly sent, as
established by the Affidavits of Amanda Coulthard and Catherine Donovan. See also
Exhibit "F".
14. Finally, based on Avis's investigation of the claim, and the fact that the
Claimant failed to appear for scheduled IMEs, Avis maintains a founded belief
duly
that the alleged injuries of the Claimants and any subsequent No-Fault treatment
submitted the Defendants were not causally related to an insured
by Defaulting
incident and Avis has denied all claims on this basis. See Affidavit of Merit of
duly
Amanda Coulthard.
I. AVIS'S MOTION FOR A DEFAULT TUDGMENT SHOULD BE GRANTED
A. T-he Standard On A Motion For A Default Judgment
15. It is well-established that a party is entitled to a default judgment
pursuant to CPLR 3215 upon "submit[ting] proof of service of the summons and
complaint, proof of the facts constituting its claim, and proof of the defaulting party's
appearing."
default in answering or Atl. Cas. Ins. Co. v. RJNT Services, Inc., 89 A.D.3d
932 N.Y.S.2d 111 (2nd Dep't 2011). See also Integon Nat'l Ins. Co. v.
649, 651, 109,
88 A.D.3d 930 N.Y.S.2d 261 (2nd Dep't (insurer "established
Noterile, 654, 655, 260, 2011)
its entitlement to a default judgment against the [insured] proof of
by submitting
service of the summons and the complaint, the facts constituting the claim, and the
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[insured's] default"); Mercury Cas. Co. v. Surgical Center At Milburn, LLC, 65 A.D.3d
885 N.Y.S.2d 219 (2nd Dep't ("The plaintiff demonstrated its entitlement
1102, 218, 2009)
to a default judgment against the defendant proof of service of the
by submitting
summons and complaint, proof of the facts constituting its claim, and proof of the
defendant's default in or appearing").
answering
B. Avis Has Submitted Proof Of The Facts Constituting Its Claim
16. The affirmation of Vilenchik, Esq., the Affidavit of Merit of
Vitaly
Amanda Coulthard, the Affidavit of Merit of Catherine Donovan and the Affidavit of
Merit of Ji Hoon Kim, D.C., L.Ac. are proof of the facts constituting Avis's claim. They
show that Avis is entitled to a Default Judgment against the Defaulting Defendants,
that there is no No-Fault coverage for their alleged claims to the
declaring relating
alleged February 13, 2017 collision referenced by Avis claim number 178007537, based
on the Claimant's failure to appear for scheduled IMEs, and (2) founded belief.
(1) duly
1. FAILURE TO SHOW TO DULY SCHEDULED IMEs
17. Despite due demand, the Claimant failed to appear for duly scheduled
IMEs on two or more occasions. These failures to appear were a violation of the No-
Fault Regulations and a violation of conditions precedent to coverage for all No-Fault
claims submitted them. Unitrin Advantage Ins. Co. v. Bayshore Physical Therap5
by
PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473, 474 (1st Dep't 2011), appeal denied, 17
N.Y.3d 705, 929 N.Y.S.2d 96 (2011). See Affidavits of Amanda Coulthard, Catherine
Donovan and Ji Hoon Kim, D.C., L.Ac.
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18. Furthermore, all of the letters were timely and sent in accordance
properly
with 11 NYCRR 65-3.5(b), as established by the affidavit of Amanda Coulthard. Id.
However, even arguendo that the letters were not sent within the specific time
assuming
frames of 11 NYCRR 65-3.5(b), which they were, 11 NYCRR 65-3.5(p) mandates that the
Claimants still must appear for and comply with the IMEs request irrespective of when
the letters were sent. Therefore, it is clear that the IME letters were entirely proper. See
Affidavits of Amanda Coulthard and Catherine Donovan.
19. If, however, a claim is received after the IME letters are sent, the IME
letters are not subject to the time frames of 3.5(b). See Mapfre Ins. Co. of NY v. Ma_noo,
140 A.D.3d 468 (1st Dept. 2016).
20. In the instant case, the IME letters were sent on or before December 12,
2017, and a bill on behalf of the Claimant was received on January 3, 2018, which
demonstrates that the IME letters were timely under Mapfre. See Bill received on
"F"
January 3, 2018, attached hereto as Exhibit and Affidavits of Amanda Coulthard
and Catherine Donovan.
2. FOUNDED BELIEF
21. Based on Avis's investigation of the claim, Avis maintains a founded
belief that the alleged injuries of the Claimant did not arise out of an insured incident
and Avis has duly denied the claims of the defendants on this basis. See the affidavit of
Amanda Coulthard.
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22. A No-Fault insurer may disclaim coverage based upon "the fact or
incident."
founded belief that the alleged does not arise out of an insured Central
injury
Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 681 N.E.2d 413 (1997).
23. A No-Fault insurer is "not required to establish that the subject collision
was the product of fraud, which would require proof of all elements of fraud, including
evidence."
scienter, clear and Rather, a No-Fault insurer must
by convincing
demonstrate the facts elicited during an investigation which make up the founded
belief. V.S. Med. Servs., P.C. v. Allstate Ins. Co, 25 Misc.3d 39, 889 N.Y.S.2d 360 (App.
Term 2009). See also Repwest Ins. Co. v. Sasan Family Chiropractic, P.C., 2016 N.Y.
Misc. LEXIS 2774, (Sup. Ct. N.Y. Cty. 2016).
24. Circumstantial evidence is sufficient to prove this if a party's conduct
"may be reasonably inferred based upon logical inferences to be drawn from the
evidence."
V.S. Med. Servs., P.C. v. Allstate Ins. Co., 11 Misc.3d 334, 339, 811 N.Y.S.2d
886 (Civ. Ct. Kings Cty. 2006), aff'd, 25 Misc. 3d 39, 889 N.Y.S.2d 360 (App. Term. 2009).
25. In the instant case, there is significant evidence to afford such a founded
belief and therefore the application for a default judgment on this cause of action must
be granted by the Court.
C. The Defaulting Defendants Have No Meritorious Defense
26. Since the Defaulting Defendants have no reasonable excuse for their
months of continuing default after they were served with the Summons and Verified
Complaint and the Notice of Default, this Court need not address whether have
they
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any meritorious defense to this action. See Abdul v. Hirschfield, 71 A.D.3d 707,
708 - 898 N.Y.S.2d 45 (2nd Dep't ("In view of the lack of a reasonable
709, 44, 2010)
excuse, it is to consider whether [defendant] demonstrated the
unnecessary sufficiently
existence of a meritorious defense"); v. Butwell, 34 A.D.3d 1005, 1006, 825
fÇranenburg
N.Y.S.2d 165 (3rd Dep't ("Given the of defendant's submission
163, 2006) insufficiency
a reasonable excuse for the default, it is not to address whether
concerning necessary
defendant has a meritorious defense to the action"). Moreover, the Defaulting
Defendants have not shown any meritorious defenses.
27. As described above and in the annexed affidavit of merit of Amanda
Coulthard, Avis maintains meritorious causes of action, the defendants in default have
no defense to this action, and the defendants in default have failed to answer Avis's
complaint and are in default in answering same. A Notice of Default was sent to the
defendants served through the of state. See Notices of Default annexed as
secretary
Exhibit "G".
28. No prior request was made for the relief requested herein.
29. Accordingly, Avis is entitled to a Default Judgment against defendants
BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE, P.C., STAND-UP MRI
OF MANHATTAN, P.C., PROGRESSIVE-HUDSON ANESTHESIA, LLC, SMART
TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE
SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC
ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES,
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P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL ASSOCIATES, P.C.,
SHEEPSHEAD BAY MEDICAL SUPPLY, INC. and EMA MEDICAL EQUIPMENT
CORP, declaring that there is no No-Fault coverage for the their alleged claims relating
to the alleged 13, 2017 collision referenced by Avis claim number 178007537.
February
WHEREFORE, Plaintiff respectfully requests that its motion be granted in its
entirety.
DATED: New York, New York
November 12, 2018
Vitaly enchik, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------X
PV HOLDING CORP. INCLUDING ALL OF ITS SUBSIDIARIES
AND AFFILIATES, INCLUDING BUT NOT LIMITED TO
AVIS BUDGET, LLC, AVIS CAR RENTAL, LLC, BUDGET CAR
RENTAL, LLC, BUDGET TRUCK RENTAL, LLC,
PAYLESS CAR RENTAL, INC. and ZIPCAR, INC.,
Index No.: 154477/18
Plaintiff(s),
-against-
AFFIDAVIT OF
Catherine Donovan
BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE,
STAND-UP MRI OF PROGRESSIVE-
P.C., MANHATTAN, P.C.,
HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C.,
RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE
SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX,
LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP
ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C.,
HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL
ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC.,
EMA MEDICAL EQUIPMENT CORP and QURAN DAVIS
CATHERINE DONOVAN, being duly sworn deposes and says that:
1. I am presently employed as a Customer Service Manager of MES Solution
(hereinafter referred to as "MES") located at 1393 Veterans Memorial Highway,
Suite 110N, Hauppauge, New York 1 1788. I am responsible for ensuring that
MES business practices and policies are complied with.
MES'
2. I have personal knowledge that an aspect of business is to schedule
Independent Medical Examinations (IMEs), at the request of insurance
companies, with independent medical examiners who are under a business duty to
conduct Independent Medical Examinations of individuals making claims under
insurance policies and reporting the findings of those examinations to the
.
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insurance carriers. SEDGWICK/ AVIS is one of the insurance companies for
whom MES Solutions provides services.
MES'
3. I have personal knowledge of mailing practices and policies. Copies of all
IME scheduling and re-scheduling letters are kept and maintained within our
computer system.
4. I make the following affirmation based upon my personal knowledge and my
personal review of business records generated by MES in the normal course of
business.
MES'
5. I have personal knowledge that itis business policy and practice to contact
IME doctors to perform an IME, ascertain a date for the IME and then send an
IME scheduling letter to the individual to be examined. The IME scheduling
letteris generated with the address of the person to be examined, as provided by
the insurance carrier, placed at the top of the scheduling letter. The scheduling
letteris then placed in an envelope with a clear plastic window which identifies
the addressee's name. The envelope is sealed and proper postage is applied. At
the end of the day the mail is delivered to the United States Post Office. If the
individual does not appear at the scheduled IME, the IME doctor is under a
.
business duty to contact MES to advise that the individual did not appear. Upon
receiving a report from the IME doctor, MES updates the insurance carrier
advising that the individual did not appear at the scheduled IME.
6. I have personal knowledge that my office obtains all pertinent information in
relationship to the requested IME at the time the insurance company sends a
service authorization. The insurer's service authorization requesting an IME
advises my office of the medical examination specialty and liststhe insured, the
date of accident, the claim number, the claimant's name (ifdifferent than the
insured), the c1-imant's address, and if applicable the claimant's attorney with
address and any other information pertinent to the requested examination.
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MES'
7. It is regular office business policies and procedures that the letters are
mailed to the claimants at the address provided by the carrier. Further, all MES
letters include the following information: date and time of the IME, doctor's
name, specialty and location of the medical office. The letters also relate that
reasonable transportation expenses and any loss of wages incurred in complying
with the IME request will be reimbursed. If the examinee is unable to attend, the
examinee must contact MES in a timely fashion. The initial scheduling letter
indicates that the IMEs were scheduled in accordance with the New York's No-
Fault Law, 11 NYCRR 65.12. Further, both scheduling letters advise that failure
to submit to the scheduled examinations may result in the forfeiture of benefits
under the New York No Fault Law.
8. My review of the files,records and documentations reveal that SEDGWICK/
AVIS requested an Independent Medical Examination of Claimant, QURAN
DAVIS. The policyholder's name isQURAN DAVIS, the date of accident is
02/13/2017 and the insurer's claim number is 178007537.
MES'
9. Review of system notes indicates that regular business practices and
procedures, as set forth heretofore, were followed, and on 12/12/2017 MES
Solutions mailed an IME scheduling letter to Claimant QURAN DAVIS, at 7
Saint James Place, APT. 4I, New York, NY 10038. This letter advised QURAN
DAVIS their presence was required for an IME with Ji Hoon Kim, DC, LAc
located at TRS Building 40 Exchange Place, Third Floor, New York, NY 10005
to be held on 01/16/2018 at 10:30 A.M.
10. QURAN DAVIS failed to appear at this examination. My office received
notification from Dr. KIM'S office that QURAN DAVIS failed to appear at the
IME scheduled for 01/16/2018.
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11. Review of system notes indicates that MES Solutions regular business practices
and procedures, as set forth above, were followed. On 02/07/2018 MES Solutions
mailed a re-scheduling letter for an IME with Ji Hoon Kim, DC, LAc located at
TRS Building 40 Exchange Place, Third Floor, New York, NY 10005 to be held
on 02/24/2018 at 11:15 A.M. The IME re-scheduling letterwas mailed by MES
Solutions and addressed to QURAN DAVIS, at 7 Saint James Place, APT. 4I,
New York, NY 10038.
12. QURAN DAVIS failed to appear at this examination. My office received
notification from Dr. KIM'S office that QURAN DAVIS failed to appear at the
IME scheduled for 02/24/2018. At that time, MES Solutions notified
SEDGWICK/ AVIS that QURAN DAVIS failed to appear for the 02/24/2018
scheduled exam.
13. My review of the file,records and documentation pertinent to QURAN DAVIS
reveal that at the request of the SEDGWICK/ AVIS, MES Solutions scheduled
two (2) ACU/CHIRO Independent Medical Examinations and QURAN DAVIS
was a no-show to the two examinations.
I certify that the above stated facts are true to the best of my knowledge and belief under
the penalties of perjury.
Dated: auge, NY
Octobe 2018
CATHERINE DONOVAN
On th d y of October, 2018, before me personally came and appeared
CATHERINE DONOVAN, to me known and known to me to be the individual described
in and who executed the foregoing instrument and who duly acknowledged to me that
s/he ecuted the same.
Pdb c STEPHANIE GALLAGHER
Notary
PUBLIC-STATE OF NEW YORK
NOTARY
No. OlGAó318807
Qualified inSuffolk County
Commission 02, 2019
Expires February
My
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M
1393 Veterans Memorial Hwy
Suite 110N
NY 11788
S OLUTIONS Hauppauge,
TELEPHONE (631) 851-7800
SINCE 1978
FAX (832) 485-0690
12/12/2017
QURAN DAVIS Claimant: QURAN DAVIS
7 SAINT JAMES PLACE Claim Number 178007537
APT. 41
NEW YORK, NY 10038
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. FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________________-------------------------------X PV HOLDING CORP. INCLUDING ALL OF ITS SUBSIDIARIES AND AFFILIATES, INCLUDING BUT NOT LIMITED TO AVIS BUDGET, LLC, AVIS CAR RENTAL, Index No.:154477/2018 LLC, BUDGET CAR RENTAL, LLC, BUDGET TRUCK RENTAL, LLC, PAYLESS CAR RENTAL, INC. and ZIPCAR, AFFIRMATION INC., Plaintiff(s), -against- BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE, STAND-UP MRI OF PROGRESSIVE- P.C., MANHATTAN, P.C., HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC., EMA MEDICAL EQUIPMENT CORP and QURAN DAVIS Defendant(s). ___..________.. --------------------------------- -X Vitaly Vilenchik, Esq., an attorney duly licensed to practice law before the Courts of the State of New York, affirms the following statements to be true upon information and belief, under the penalty of perjury: FACTUAL BACKGROUND 1. I am an attorney licensed to practice law in the state of New York and am associated with the law firm of Rubin, Fiorella & Friedman LLP, attorneys for the Plaintiff, PV HOLDING CORP. INCLUDING ALL OF ITS SUBSIDIARIES AND AFFILIATES, INCLUDING BUT NOT LIMITED TO AVIS BUDGET, LLC, AVIS CAR 1 of 28 . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 RENTAL, LLC, BUDGET CAR RENTAL, LLC, BUDGET TRUCK RENTAL, LLC , PAYLESS CAR RENTAL, INC. and ZIPCAR, INC. (hereafter "Avis"). 2. This affirmation is submitted in support of the within motion seeking a default judgment pursuant to CPLR § 3215 against defendants BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE, P.C., STAND-UP MRI OF MANHATTAN, P.C., PROGRESSIVE-HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC. and EMA MEDICAL EQUIPMENT CORP based on their failure to answer the complaint for judgment.1 declaratory 3. Avis's motion seeking a default judgment pursuant to CPLR § 3215 should be granted because Avis has proven service of the Summons and Verified Complaint, defendants BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE, P.C., STAND-UP MRI OF MANHATTAN, P.C., PROGRESSIVE-HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE 1 Defendants QURAN DAVIS has not been located for service. 2 2 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC. and EMA MEDICAL EQUIPMENT CORP (the "Defaulting Defendants") have defaulted in answering, the facts its claim, and that the defaulting defendants have no constituting meritorious defense. A true copy of the Summons and Verified Complaint is annexed as Exhibit "A". The affidavits of service on the Defendants are attached as Defaulting Exhibit "B". 4. Defendant QURAN DAVIS ("the Claimant") was allegedly involved in an automobile collision on February 13, 2017, while an occupant of a vehicle owned and self-insured by Avis. All claims of Avis owned and self-insured vehicles are handled by Sedgwick Claims Management Corporation, a third party administrator. 5. The 13, 2017 collision occurred on Essex Street at or February allegedly near its intersection with Rivington Street in New York, New York. The police report indicates that the alleged collision occurred when the adverse vehicle was making a left turn and collided with the insured vehicle. The police report further indicates that the driver of the adverse vehicle had no visible physical injury, refused medical attention, and that the air bags did not deploy in either vehicle. See Police Report attached hereto as Exhibit "C". 6. Despite the above facts, the Claimant subsequently reported to have sustained bodily injuries in the collision. Avis assigned claim number 178007537 to all claims to the 2017 collision. See the Claimant's Application for No- relating February 13, Fault Benefits attached hereto as Exhibit "D". 3 3 of 28 . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 7. After the collision occurred, Avis received claims from the Defaulting Defendants. To date, the Defendants have submitted over tens of thousands Defaulting in bills for treatment provided to the Claimant. allegedly 8. In addition to the sheer magnitude of the claims submitted, the claim's legitimacy was questionable because the driver of the adverse vehicle did not allege at the scene of the collision and did not request medical attention. Furthermore, injury the damage to the Avis vehicle was minor and the claimant began receiving boilerplate and excessive medical treatment from numerous medical providers. See Affidavit of Merit of Amanda Coulthard. 9. That these factors raised a that the treatment submitted strong possibility was not related to the 2017 which would be considered non- causally February 13, loss, covered events under the No-Fault Regulations. 10. Based upon these factors, Avis, pursuant to its rights under the No-Fault Regulations, and sought independent medical examinations ("IMEs") of duly properly the Claimant to confirm the of this loss and the necessity of any alleged legitimacy treatment and referrals. 11. Despite due demand, the Claimant failed to appear for his IMEs on January 16, 2018 and February 24, 2018, which was a violation of a condition precedent to coverage for all No-Fault claims submitted, and Avis has duly denied the claims of the defendants on this basis. See IME notices attached hereto as Exhibit "E". See also Affidavits of Amanda Coulthard, Catherine Donovan and Ji Hoon Kim, D.C., L.Ac. 4 4 of 28 . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 12. Avis denied all claims submitted of the defendants on that basis. See Affidavits of Amanda Coulthard, Catherine Donovan and Ji Hoon Kim, D.C., L.Ac. 13. Furthermore, the IME scheduling letters were timely and properly sent, as established by the Affidavits of Amanda Coulthard and Catherine Donovan. See also Exhibit "F". 14. Finally, based on Avis's investigation of the claim, and the fact that the Claimant failed to appear for scheduled IMEs, Avis maintains a founded belief duly that the alleged injuries of the Claimants and any subsequent No-Fault treatment submitted the Defendants were not causally related to an insured by Defaulting incident and Avis has denied all claims on this basis. See Affidavit of Merit of duly Amanda Coulthard. I. AVIS'S MOTION FOR A DEFAULT TUDGMENT SHOULD BE GRANTED A. T-he Standard On A Motion For A Default Judgment 15. It is well-established that a party is entitled to a default judgment pursuant to CPLR 3215 upon "submit[ting] proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's appearing." default in answering or Atl. Cas. Ins. Co. v. RJNT Services, Inc., 89 A.D.3d 932 N.Y.S.2d 111 (2nd Dep't 2011). See also Integon Nat'l Ins. Co. v. 649, 651, 109, 88 A.D.3d 930 N.Y.S.2d 261 (2nd Dep't (insurer "established Noterile, 654, 655, 260, 2011) its entitlement to a default judgment against the [insured] proof of by submitting service of the summons and the complaint, the facts constituting the claim, and the 5 5 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 [insured's] default"); Mercury Cas. Co. v. Surgical Center At Milburn, LLC, 65 A.D.3d 885 N.Y.S.2d 219 (2nd Dep't ("The plaintiff demonstrated its entitlement 1102, 218, 2009) to a default judgment against the defendant proof of service of the by submitting summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default in or appearing"). answering B. Avis Has Submitted Proof Of The Facts Constituting Its Claim 16. The affirmation of Vilenchik, Esq., the Affidavit of Merit of Vitaly Amanda Coulthard, the Affidavit of Merit of Catherine Donovan and the Affidavit of Merit of Ji Hoon Kim, D.C., L.Ac. are proof of the facts constituting Avis's claim. They show that Avis is entitled to a Default Judgment against the Defaulting Defendants, that there is no No-Fault coverage for their alleged claims to the declaring relating alleged February 13, 2017 collision referenced by Avis claim number 178007537, based on the Claimant's failure to appear for scheduled IMEs, and (2) founded belief. (1) duly 1. FAILURE TO SHOW TO DULY SCHEDULED IMEs 17. Despite due demand, the Claimant failed to appear for duly scheduled IMEs on two or more occasions. These failures to appear were a violation of the No- Fault Regulations and a violation of conditions precedent to coverage for all No-Fault claims submitted them. Unitrin Advantage Ins. Co. v. Bayshore Physical Therap5 by PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473, 474 (1st Dep't 2011), appeal denied, 17 N.Y.3d 705, 929 N.Y.S.2d 96 (2011). See Affidavits of Amanda Coulthard, Catherine Donovan and Ji Hoon Kim, D.C., L.Ac. 6 6 of 28 . . . . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 18. Furthermore, all of the letters were timely and sent in accordance properly with 11 NYCRR 65-3.5(b), as established by the affidavit of Amanda Coulthard. Id. However, even arguendo that the letters were not sent within the specific time assuming frames of 11 NYCRR 65-3.5(b), which they were, 11 NYCRR 65-3.5(p) mandates that the Claimants still must appear for and comply with the IMEs request irrespective of when the letters were sent. Therefore, it is clear that the IME letters were entirely proper. See Affidavits of Amanda Coulthard and Catherine Donovan. 19. If, however, a claim is received after the IME letters are sent, the IME letters are not subject to the time frames of 3.5(b). See Mapfre Ins. Co. of NY v. Ma_noo, 140 A.D.3d 468 (1st Dept. 2016). 20. In the instant case, the IME letters were sent on or before December 12, 2017, and a bill on behalf of the Claimant was received on January 3, 2018, which demonstrates that the IME letters were timely under Mapfre. See Bill received on "F" January 3, 2018, attached hereto as Exhibit and Affidavits of Amanda Coulthard and Catherine Donovan. 2. FOUNDED BELIEF 21. Based on Avis's investigation of the claim, Avis maintains a founded belief that the alleged injuries of the Claimant did not arise out of an insured incident and Avis has duly denied the claims of the defendants on this basis. See the affidavit of Amanda Coulthard. 7 7 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 22. A No-Fault insurer may disclaim coverage based upon "the fact or incident." founded belief that the alleged does not arise out of an insured Central injury Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 681 N.E.2d 413 (1997). 23. A No-Fault insurer is "not required to establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including evidence." scienter, clear and Rather, a No-Fault insurer must by convincing demonstrate the facts elicited during an investigation which make up the founded belief. V.S. Med. Servs., P.C. v. Allstate Ins. Co, 25 Misc.3d 39, 889 N.Y.S.2d 360 (App. Term 2009). See also Repwest Ins. Co. v. Sasan Family Chiropractic, P.C., 2016 N.Y. Misc. LEXIS 2774, (Sup. Ct. N.Y. Cty. 2016). 24. Circumstantial evidence is sufficient to prove this if a party's conduct "may be reasonably inferred based upon logical inferences to be drawn from the evidence." V.S. Med. Servs., P.C. v. Allstate Ins. Co., 11 Misc.3d 334, 339, 811 N.Y.S.2d 886 (Civ. Ct. Kings Cty. 2006), aff'd, 25 Misc. 3d 39, 889 N.Y.S.2d 360 (App. Term. 2009). 25. In the instant case, there is significant evidence to afford such a founded belief and therefore the application for a default judgment on this cause of action must be granted by the Court. C. The Defaulting Defendants Have No Meritorious Defense 26. Since the Defaulting Defendants have no reasonable excuse for their months of continuing default after they were served with the Summons and Verified Complaint and the Notice of Default, this Court need not address whether have they 8 8 of 28 . . . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 any meritorious defense to this action. See Abdul v. Hirschfield, 71 A.D.3d 707, 708 - 898 N.Y.S.2d 45 (2nd Dep't ("In view of the lack of a reasonable 709, 44, 2010) excuse, it is to consider whether [defendant] demonstrated the unnecessary sufficiently existence of a meritorious defense"); v. Butwell, 34 A.D.3d 1005, 1006, 825 fÇranenburg N.Y.S.2d 165 (3rd Dep't ("Given the of defendant's submission 163, 2006) insufficiency a reasonable excuse for the default, it is not to address whether concerning necessary defendant has a meritorious defense to the action"). Moreover, the Defaulting Defendants have not shown any meritorious defenses. 27. As described above and in the annexed affidavit of merit of Amanda Coulthard, Avis maintains meritorious causes of action, the defendants in default have no defense to this action, and the defendants in default have failed to answer Avis's complaint and are in default in answering same. A Notice of Default was sent to the defendants served through the of state. See Notices of Default annexed as secretary Exhibit "G". 28. No prior request was made for the relief requested herein. 29. Accordingly, Avis is entitled to a Default Judgment against defendants BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE, P.C., STAND-UP MRI OF MANHATTAN, P.C., PROGRESSIVE-HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, 9 9 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC. and EMA MEDICAL EQUIPMENT CORP, declaring that there is no No-Fault coverage for the their alleged claims relating to the alleged 13, 2017 collision referenced by Avis claim number 178007537. February WHEREFORE, Plaintiff respectfully requests that its motion be granted in its entirety. DATED: New York, New York November 12, 2018 Vitaly enchik, Esq. 10 10 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------X PV HOLDING CORP. INCLUDING ALL OF ITS SUBSIDIARIES AND AFFILIATES, INCLUDING BUT NOT LIMITED TO AVIS BUDGET, LLC, AVIS CAR RENTAL, LLC, BUDGET CAR RENTAL, LLC, BUDGET TRUCK RENTAL, LLC, PAYLESS CAR RENTAL, INC. and ZIPCAR, INC., Index No.: 154477/18 Plaintiff(s), -against- AFFIDAVIT OF Catherine Donovan BSS MEDICAL, P.C., EAST SIDE PRIMARY MEDICAL CARE, STAND-UP MRI OF PROGRESSIVE- P.C., MANHATTAN, P.C., HUDSON ANESTHESIA, LLC, SMART TOUCH P.T., P.C., RANA UNITED, INC., SURGICORE, LLC a/k/a SURGICORE SURGICAL CENTER, QB ACUPUNCTURE, P.C., AUTORX, LLC, VP CHIROPRACTIC ADJUSTMENT, P.C., HMP ORTHOPAEDICS, P.C., APS CHIROPRACTIC SERVICES, P.C., HEALTHCRAFT P.T., P.C., HEALTHWISE MEDICAL ASSOCIATES, P.C., SHEEPSHEAD BAY MEDICAL SUPPLY, INC., EMA MEDICAL EQUIPMENT CORP and QURAN DAVIS CATHERINE DONOVAN, being duly sworn deposes and says that: 1. I am presently employed as a Customer Service Manager of MES Solution (hereinafter referred to as "MES") located at 1393 Veterans Memorial Highway, Suite 110N, Hauppauge, New York 1 1788. I am responsible for ensuring that MES business practices and policies are complied with. MES' 2. I have personal knowledge that an aspect of business is to schedule Independent Medical Examinations (IMEs), at the request of insurance companies, with independent medical examiners who are under a business duty to conduct Independent Medical Examinations of individuals making claims under insurance policies and reporting the findings of those examinations to the . 11 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 insurance carriers. SEDGWICK/ AVIS is one of the insurance companies for whom MES Solutions provides services. MES' 3. I have personal knowledge of mailing practices and policies. Copies of all IME scheduling and re-scheduling letters are kept and maintained within our computer system. 4. I make the following affirmation based upon my personal knowledge and my personal review of business records generated by MES in the normal course of business. MES' 5. I have personal knowledge that itis business policy and practice to contact IME doctors to perform an IME, ascertain a date for the IME and then send an IME scheduling letter to the individual to be examined. The IME scheduling letteris generated with the address of the person to be examined, as provided by the insurance carrier, placed at the top of the scheduling letter. The scheduling letteris then placed in an envelope with a clear plastic window which identifies the addressee's name. The envelope is sealed and proper postage is applied. At the end of the day the mail is delivered to the United States Post Office. If the individual does not appear at the scheduled IME, the IME doctor is under a . business duty to contact MES to advise that the individual did not appear. Upon receiving a report from the IME doctor, MES updates the insurance carrier advising that the individual did not appear at the scheduled IME. 6. I have personal knowledge that my office obtains all pertinent information in relationship to the requested IME at the time the insurance company sends a service authorization. The insurer's service authorization requesting an IME advises my office of the medical examination specialty and liststhe insured, the date of accident, the claim number, the claimant's name (ifdifferent than the insured), the c1-imant's address, and if applicable the claimant's attorney with address and any other information pertinent to the requested examination. 12 of 28 . . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 MES' 7. It is regular office business policies and procedures that the letters are mailed to the claimants at the address provided by the carrier. Further, all MES letters include the following information: date and time of the IME, doctor's name, specialty and location of the medical office. The letters also relate that reasonable transportation expenses and any loss of wages incurred in complying with the IME request will be reimbursed. If the examinee is unable to attend, the examinee must contact MES in a timely fashion. The initial scheduling letter indicates that the IMEs were scheduled in accordance with the New York's No- Fault Law, 11 NYCRR 65.12. Further, both scheduling letters advise that failure to submit to the scheduled examinations may result in the forfeiture of benefits under the New York No Fault Law. 8. My review of the files,records and documentations reveal that SEDGWICK/ AVIS requested an Independent Medical Examination of Claimant, QURAN DAVIS. The policyholder's name isQURAN DAVIS, the date of accident is 02/13/2017 and the insurer's claim number is 178007537. MES' 9. Review of system notes indicates that regular business practices and procedures, as set forth heretofore, were followed, and on 12/12/2017 MES Solutions mailed an IME scheduling letter to Claimant QURAN DAVIS, at 7 Saint James Place, APT. 4I, New York, NY 10038. This letter advised QURAN DAVIS their presence was required for an IME with Ji Hoon Kim, DC, LAc located at TRS Building 40 Exchange Place, Third Floor, New York, NY 10005 to be held on 01/16/2018 at 10:30 A.M. 10. QURAN DAVIS failed to appear at this examination. My office received notification from Dr. KIM'S office that QURAN DAVIS failed to appear at the IME scheduled for 01/16/2018. 13 of 28 . FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 11. Review of system notes indicates that MES Solutions regular business practices and procedures, as set forth above, were followed. On 02/07/2018 MES Solutions mailed a re-scheduling letter for an IME with Ji Hoon Kim, DC, LAc located at TRS Building 40 Exchange Place, Third Floor, New York, NY 10005 to be held on 02/24/2018 at 11:15 A.M. The IME re-scheduling letterwas mailed by MES Solutions and addressed to QURAN DAVIS, at 7 Saint James Place, APT. 4I, New York, NY 10038. 12. QURAN DAVIS failed to appear at this examination. My office received notification from Dr. KIM'S office that QURAN DAVIS failed to appear at the IME scheduled for 02/24/2018. At that time, MES Solutions notified SEDGWICK/ AVIS that QURAN DAVIS failed to appear for the 02/24/2018 scheduled exam. 13. My review of the file,records and documentation pertinent to QURAN DAVIS reveal that at the request of the SEDGWICK/ AVIS, MES Solutions scheduled two (2) ACU/CHIRO Independent Medical Examinations and QURAN DAVIS was a no-show to the two examinations. I certify that the above stated facts are true to the best of my knowledge and belief under the penalties of perjury. Dated: auge, NY Octobe 2018 CATHERINE DONOVAN On th d y of October, 2018, before me personally came and appeared CATHERINE DONOVAN, to me known and known to me to be the individual described in and who executed the foregoing instrument and who duly acknowledged to me that s/he ecuted the same. Pdb c STEPHANIE GALLAGHER Notary PUBLIC-STATE OF NEW YORK NOTARY No. OlGAó318807 Qualified inSuffolk County Commission 02, 2019 Expires February My 14 of 28 FILED: NEW YORK COUNTY CLERK 11/13/2018 03:19 PM INDEX NO. 154477/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/13/2018 M 1393 Veterans Memorial Hwy Suite 110N NY 11788 S OLUTIONS Hauppauge, TELEPHONE (631) 851-7800 SINCE 1978 FAX (832) 485-0690 12/12/2017 QURAN DAVIS Claimant: QURAN DAVIS 7 SAINT JAMES PLACE Claim Number 178007537 APT. 41 NEW YORK, NY 10038