, ATHENA CHIROPRACTIC, P.C., BL PAIN MANAGEMENT, PLLC, BNT-AMS CORP., BOWEN MD, PLLC, BRONX DIAGNOSTIC RADIOLOGY, P.C., CENTRAL RX PHARMACY CORP., COMPREHENSIVE DIAGNOSTICS AND IMAGING, P.C., DR. SIMEON ISAACS, FINESSE CARE PHYSICAL THERAPY, P.C., HARVEY LEVITAN MEDICAL, P.C., MALAGA MEDICAL, P.C., MULTIWAVE DIAGNOSTICS, INC., OPAQUE NY, INC., PARK CHEMISTS, LLC, TIARILLIE, INC., Defendant.
Index No. 650890/2024, Motion Seq. No. 001. Supreme Court, New York County. September 15, 2025.
DECISION + ORDER ON MOTION JAMES G. CLYNES, J.S.C.
In this action, plaintiff American Transit Insurance Company (“American Transit”) seeks a declaratory judgment that it is not required to pay no-fault benefits to defendants Angela Whitted (“Claimant”) and the numerous medical providers. Claimant was a passenger in a vehicle that was allegedly involved in an accident on March 16, 2023. The vehicle was covered by a no-fault insurance policy issued by American Transit. The numerous medical providers applied for no-fault benefits as assignees of Claimant.
Plaintiff now moves pursuant to CPLR § 3215 for a default judgment against the non-answering defendants: Atlantic Medical & Diagnostic, P.C., Athena Chiropractic, P.C., BL Pain Management, PLLC, BNT-AMS Corp., Bowen MD, PLLC, Bronx Diagnostic Radiology, P.C., Central RX Pharmacy Corp., Comprehensive Diagnostics and Imaging, P.C., Dr. Simeon Isaacs, Finesse Care Physical Therapy, P.C., Malaga Medical, P.C., Multiwave Diagnostics, Inc., Opaque NY, Inc., Park Chemists, LLC, and Tiarillie, Inc (collectively “Defaulting Defendants”). The remaining two defendants, namely Claimant and Harvey Levitan Medical, P.C., filed their respective answers.
Defendants Athena Chiropractic, P.C. and Finesse Care Physical Therapy, P.C. cross move, pursuant to CPLR § 3012(d) and CPLR § 2004, to compel acceptance of defendants’ answer or grant defendants leave to serve their late answer.
DISCUSSION
Pursuant to CPLR § 3215, on a motion for leave to enter a default judgment against a defendant for failure to answer or appear, plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting such claim, and proof of the defendant’s default (Bigio v. Gooding, 213 AD3d 480, 481 [1st Dept 2023]). With respect to proof of the facts constituting the claim, the application must contain sufficient proof “to enable a court to determine that a viable cause of action exists” (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]).
Proof of Service In support of its motion, plaintiff proffered Affidavits of Service to establish that the summons and complaint were properly served. However, according to the Affidavit of Service dated March 8, 2024, defendant Dr. Simeon Isaacs was served pursuant to CPLR 308(4). Plaintiff did not provide a non-military affidavit for Dr. Simeon Isaacs in accordance with the Soldiers’ and Sailors’ Civil Relief Act of 1940. The affidavit must set forth facts showing that the defendant is not in military service.
Proof of Facts American Transit asserts that Claimant’s alleged injuries were not causally related to the March 16, 2023 accident. A no-fault insurer seeking a declaration of no coverage must establish as a “fact or founded belief that the alleged injury does not arise out of an insurer incident.” Here, plaintiff solely relies on a Biomechanical Analysis Report. That report, however, is insufficient to meet American Transit’s burden. The report is based largely on inadmissible evidence, namely the unsigned transcript of defendant Whitted’s examination under oath (EUO).
The Biomechanical Report relies on Whitted’s EUO transcript, but that transcript is not signed or notarized. American Transit fails to show that it ever provided the transcript to Claimant to review and sign, as required by CPLR 3116(a). Furthermore, the Biomechanical Report is a summary report that is neither sworn nor notarized. As a result, this court cannot rely on the report as plaintiff’s basis for its proof of facts.
Accordingly, plaintiff failed to meet its burden and is not entitled to a default judgment against the Defaulting Defendants.
Cross Motion of Defendants Athena Chiropractic, P.C. and Finesse Care Physical Therapy, P.C. In addition to opposing plaintiff’s default judgment motion, defendants Athena Chiropractic, P.C. and Finesse Care Physical Therapy, P.C. separately cross-move to compel acceptance of their answer. In plaintiff’s Affirmation in Opposition to the Cross Motion, plaintiff accepts Moving Defendants’ Answer and withdraws its motion for a default judgment against them.
ORDER
ORDERED that plaintiff’s motion for a default judgment pursuant to CPLR § 3215 is DENIED, without prejudice to renew upon proper papers. Any future application for this relief must contain a copy of this decision and order and show strict compliance with the above statutory requirements; and it is further
ORDERED that the cross-motion of defendants Athena Chiropractic, P.C. and Finesse Care Physical Therapy, P.C., pursuant to CPLR § 3012(d) and CPLR § 2004, is deemed resolved.