Index No. 152505/2021, Motion Seq. No. 002. Supreme Court, New York County. March 7, 2025.
DECISION + ORDER ON MOTION JUDY H. KIM, J.S.C.
Plaintiff’s motion for summary judgment is granted in part, to the extent set forth below.
In this declaratory judgment action, plaintiff seeks to disclaim coverage for medical treatment provided to defendants Felix A. Quinones, Miguel Burgos and Kevin Gonzalez by the other defendants, all medical providers, for injuries Quinones, Burgos, and Gonzalez allegedly sustained in an automobile collision on February 26, 2020, involving a car owned and operated by Quinones in which Burgos and Gonzalez were passengers. Burgos and Gonzalez appeared at examinations under oath (“EUOs”) and testified, in pertinent part, that they were traveling to a Sonic restaurant for dinner and that the subject collision occurred on a highway—the name of which they did not know—when Quinones’s car was hit “hard” from behind, leaving a big dent in the bumper of Quinones’s car (NYSCEF Doc Nos. 146 [Burgos EUO tr at 19-22], 147 [Gonzalez EUO tr at 23-26]).
Plaintiff now moves for summary judgment on the grounds that: (1) it has established that the subject automobile collision was staged; and (2) Quinones failed to appear for examinations under oath (“EUO”) on July 2, 2020, August 18, 2020, and October 27, 2020, thereby breaching a condition precedent to coverage under his policy with plaintiff. In support of its motion, plaintiff submits an affidavit by Claim Specialist Dominique Wafer (NYSCEF Doc No. 130), transcripts from the EUOs of Burgos and Gonzalez (NYSCEF Doc Nos. 146, 147), the certified police report and amended police report from the subject collision (NYSCEF Doc No. 144), and the declarations page of Quinones’s insurance policy with plaintiff (NYSCEF Doc No. 145).
In her affidavit, Wafer states that plaintiff’s investigation of the subject claim uncovered information regarding the timing of the accident (two days after the policy began), conflicting address information for Mr. Quinones and Mr. Gonzalez, and discrepancies in reporting the loss.
As to Burgos and Gonzalez’s EUO testimony, Wafer noted significant inconsistencies regarding their knowledge of each other, the vehicle description (one described a Nissan SUV while the car was a Hyundai coupe), the timeline of their dinner plans, and the location where they met. Both claimants also gave vague descriptions of the accident itself and refused hospital transport despite claiming injuries.
Finally, Wafer noted that the vehicle involved had been previously salvaged, and that the phone number provided by Mr. Quinones was linked to several other suspicious insurance claims. Furthermore, data from the “adverse” vehicle showed no significant change in velocity, contradicting the claimants’ description of a “hard” impact.
In opposition, defendants argue that the EUO transcripts are inadmissible and insufficient to prove a staged collision. Regarding the failure to appear for EUOs, defendants argue that plaintiff did not prove the notices were served within the required time frames.
DISCUSSION
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]).
That branch of plaintiff’s motion for summary judgment declaring that it has no obligation to pay claims submitted by Grand Medical Supply Corp. based on Quinones’s failure to appear for EUOs is granted. Plaintiff established compliance with 11 NYCRR 65-3.5 and 65-3.6 through the Wafer affidavit and proof of mailing. Quinones’s failure to appear for the scheduled EUOs constitutes a breach of a condition precedent to coverage, vitiating the policy (see PV Holding Corp. v. Hank Ross Med., P.C., 188 AD3d 429 [1st Dept 2020]).
However, that branch of plaintiff’s motion for summary judgment on the basis that the subject collision was staged is denied. While a staged collision is not a covered accident, plaintiff failed to meet the heavy burden required for summary judgment. Much of the evidence cited (Carfax, Accurint, and Event Data Recorder info) was deemed inadmissible hearsay in this context. While the EUO inconsistencies raise serious credibility issues, they do not establish as a matter of law that the collision was intentionally staged (see Easy Care Acupuncture, PC v. Hartford Ins. Co., 57 Misc 3d 147[A] [App Term, 1st Dept 2017]).
Accordingly, it is
ORDERED that the branch of plaintiff’s motion for summary judgment as against Grand Medical Supply Corp. is granted; and it is
ORDERED, ADJUDGED, and DECLARED that plaintiff has no duty to pay any no-fault benefits to defendant Grand Medical Supply Corp. with respect to claims submitted by Felix A. Quinones in connection with the February 26, 2020 loss; and it is further
ORDERED that plaintiff’s motion is otherwise denied; and it is further
ORDERED that the parties shall, within thirty days, contact Part 40 to request a pre-trial conference.
This constitutes the decision, order, and judgment of this Court.