State Farm Fire & Cas. Co. v. 101 Ave. Physical Therapy

2022 NY Slip Op 34297(U)

STATE FARM FIRE & CASUALTY COMPANY, Plaintiff, v. 101 AVENUE PHYSICAL THERAPY P.C., SONIA ARMENGOL, ALBERT GRAZIOSA MD, P.C., ALFORD A. SMITH M.D., P.C., AMSC, LLC, ATLAS PT, P.C., BEST HANDS-ON PHYSICAL THERAPY, P.C., BODYBLOOM SERVICES INC, CHANG HEAL TH PHYSICAL THERAPY P.C., DAVIO ISRAEL, M.D., GO CHIROPRACTIC P.C., HAPPY APPLE MEDICAL SERVICES, P.C., HEALRITE PT P.C., KIM CHIROPRACTIC, P.C., LDU THERAPY, INC., MEDAID RADIOLOGY, LLC, PRISCILLA ROSE SANTANA, PURE MIND ACUPUNCTURE P.C., RIVERSIDE MEDICAL SERVICES P.C., SANFORD CHIROPRACTIC, P.C., SPINAL PRO CHIROPRACTIC P.C., SUPPORTIVE PRODUCTS CORP, SYOSSET ACUPUNCTURE, P.C.,VAN LOON DME USA INC., CRISTEL MEDINA, HECTOR DIAZ, CINDY RAMIREZ-ANTIGUA, PEDRO JIMENEZ, ANTHONY LUCERO, MANUELLUCERO Defendant.

No. 152715/2020

Supreme Court, New York County

December 19, 2022

Unpublished Opinion

MOTION DATE 09/30/2022

PRESENT: HON. MARY V. ROSADO Justice

DECISION+ ORDER ON MOTION

Mary V. Rosado, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 004) 119, 120, 121, 122, 123, 124, 125, 126, 127 128, 129, 131 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

Upon the foregoing documents,'Defendants' Alford A. Smith M.D., P.C. ("Smith"), Sanford Chiropractic, P.C. ("Sanford"), Spinal Pro Chiropractic, P.C. ("Spinal"), and Riverside Medical Services, P.C. ("Riverside) (collectively "Moving Defendants") motion to vacate the default judgment entered against them by order of Justice Alexander M. Tisch dated July 2, 2021 (NYSCEF Doc. 96) is denied.

I. Factual and Procedural Background

Plaintiff State Farm Fire &Casualty Company ("State Farm") brought this action on March 12, 2020, seeking a declaratory judgment against the Moving Defendants, amongst others, that it does not owe coverage for an automobile collision that occurred on March 7, 2019 (NYSCEF Doc. 1). Defendants 101 Avenue Physical Therapy P.C., Bodybldom Services Inc., David Israel, M.D., Go Chiropractic P.C., Happy Apple Medical Services, P.C., Kim Chiropractic P.C., and Pure Mind Acupuncture P.C., all filed an Answer on March 24, 2020 (NYSCEF Doc. 2). Defendant Medaid Radiology LLC filed an Answer on June 23, 2020 (NYSCEF Doc. 70). All corporate answering Defendants were filed via the Secretary of State on April 1, 2020, and the answering defendant David Israel, M.D. was served personally on March 19, 2020 (NYSCEF Docs. 4, 11, 15, 16-17, 22, 26, and 28). The Moving Defendants were also each served via the Secretary of State on April 1, 2020 (NYSCEF Docs. 6, 30-31, and 37). On March 15th, 2021, Moving Defendants and a variety of other defendants who had defaulted in answering or filing an appearance were served with a notice of default (NYSCEF Doc. 88)., Despite the notice of default, Moving Defendants and variety of other defendants defaulted in answering or filing an appearance. Therefore, on March IS, 2021, State Farm moved for default judgment against the moving defendants as well as defendants Sonia Armengol, Albert Graziosa MD, P.C., AMSC, LLC, Atlas PT, P.C., Best Hands-On Physical Therapy, P.C., Change Health Physical Therapy PC., Heal-Rite PT P.C., LDU Therapy, Inc., Priscilla Rose Santana, Supportive Products Corp, Syosset Acupuncture, P.C., Van Loon DME USA Inc, Cristel Medina, Hector Diaz, Cindy Ramirez-Antigua, Pedro Jimenez, Anthony Lucero, and Manuel Lucero (collectively "Defaulting Defendants") (NYSCEF Doc. 82). A notice of motion was served on all of the aforementioned defendants on March 19, 2021 (NYSCEF Doc. 93) Although the motion for default was filed on March 19,,2021, the Court did not grant default judgment against Defaulting Defendants until an order dated'July 2, 2021 by Justice Alexander M. Tisch was filed on NYSCEF on July 7, 2021 (NYSCEF Doc. 96). State Farm filed a notice of entry of the decision and order granting default judgment on September 13, 2021 (NYSCEF Doc. 103). On September 14, 2021, the decision and order granting default judgment was served via mail to all Defaulting Defendants (NYSCEF Doc. 104). A stipulation of settlement dated October 6, 2021 was filed on NYSCEF on November 4, 2021 (NYSCEF Doc. 110). In that stipulation, State Farm settled this action with Defendants 101 Avenue Physical Therapy P.C., Bodybloom Services Inc., David Israel, M.D., Go Chiropractic P.C., Happy Apple Medical Services, P.C., Kim Chiropractic, P.C., and Pure Mind Acupuncture P.C. (id.).

On March 11, 2022, State Farm moved to strike Defendant Medaid Radiology LLC's ("Medaid") pleadings and enter default pursuant to CPLR § 3126 (NYSCEF Doc. 111). That motion was unopposed, and Medaid's pleadings were stricken and default was entered by decision and order of this Court dated September 9, 2022 (NYSCEE Doc. 118).

On September 13, 2022, Moving Defendants filed a motion to vacate default judgment pursuant to CPLR § 5015(a)(1) (NYSCEF Doc. 119). State Farm opposed, arguing Moving Defendants have impermissibly waited over a year after default judgment was granted, have failed to proffer any reasonable excuse for their default or delay in moving to vacate, and do not have any meritorious defenses to State Farm's claims (NYSCEF Doc. 128-129).

II. Discussion

Pursuant to CPLR §5015(a)(1), entry of default judgment may be vacated if the defaulting party proffers a reasonable excuse for default, a meritorious defense to a plaintiff's claims, and moves within one year after service of a copy of the default judgment with written notice of entry (Towncenter Partners LLC v A.A. Castro Complex Litigation, 203 A.D.3d 528 [1st Dept 2022]; Northern Source, LLC v Kousouros, 106 A.D.3d 571 [1st Dept 2013]).

State Farm's affidavit of service for notice of entry of the order granting default judgment was dated September 14, 2021 (NYSCEF Doc. 104). Moving Defendants filed the instant notice of motion on September 13, 2022 (NYSCEF Doc. 119). Therefore, although Moving Defendants waited until the last day to move to vacate, they have timely moved to vacate default judgment (see Diane v Ricale Taxi, Inc., 64 A.D.3d 432, 433 [1st Dept 2009] [one year time limit begins to run after service of notice of entry]).

However, the Court agrees with State Farm that Moving Defendants have failed to provide a reasonable excuse for their default. First, Riverside did not properly provide an affidavit from someone with personal knowledge in support of its motion to vacate. Indeed, Riverside's affidavit was filed October 5, 2022, after State Farm had already served its opposition to Riverside's motion (NYSCEF Doc. 131). An argument raised for the first time in reply, when the other party has no chance to respond, should not be considered (TGT, LLC v Advance Entertainment, LLC, 209 A.D.3d 552 [1st Dept 2022]; Simon v Francinvest, S.A., 192 A.D.3d)565, 569 [1st Dept 2021]). Even if the Court were to consider Riverside's affidavit, it still would not raise a reasonable excuse for Riverside's default. Moving Defendants each submitted an affidavit executed by their respective principals which are, in sum and substance, identical to one another (NYSCEF Doc. 125 and 131). The affidavits do not dispute that service was ever effectuated on the Secretary of State, nor do they state that State Farm did not have the correct mailing address for the notice of default and notice of default motion letters (id.). While the affidavits contend that they never received the summons and complaint from the Secretary of State, they do not deny receiving the notice of default letter prior to State Farm moving for default judgment.

Moreover the affidavits each identically state: "With respect to the instant matter, I learned of this action until sometime after mid-May 2021, when I was advised by counsel that the action had been filed in this Court, Plaintiff had filed a motion for default judgment against my business, and that the Return Date for this Motion had passed [szc. ] (NYSCEF Doc. 125 at ¶ 11 and 131 at ¶ 11). Based on this statement, the Moving Parties admit they had all been informed by counsel that there was a pending motion for default judgment that had not been entered, and yet took no action for at least a month and a half to prevent default judgment from being entered against them. There is no excuse proffered as to why, upon learning about a pending motion...