Hertz Vehs., LLC v Ace Med Supplies Inc. (2025 NY Slip Op 51959(U))

Reported in New York Official Reports at Hertz Vehs., LLC v Ace Med Supplies Inc. (2025 NY Slip Op 51959(U))

[*1]

Hertz Vehs., LLC v Ace Med Supplies Inc.

2025 NY Slip Op 51959(U) [87 Misc 3d 1249(A)]

Decided on October 7, 2025

Supreme Court, New York County

Lebovits, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2025

Hertz Vehicles, LLC, Plaintiff, against Ace Med Supplies Inc., Anan Chiropractic, P.C., Anjani Sinha Medical, P.C., Argyle Pharmacy, Inc., Atlantic Medical & Diagnostic, P.C., Centurion Midtown Anesthesia, PLLC, Citimed Complete Medical Care, P.C., Emed Pharmacy Corporation, Esraa Habiba, Fifth Avenue Surgery Center, LLC, Gamal Rehab PT, P.C., Metropolitan Medical & Surgical, P.C., Remodel Net Services, Inc., Right Choice Supply, Inc., SCOB, LLC, Sedation Vacation Perioperative Medicine, PLLC, Jorge Diaz, Rosalee Diaz, Mauro Herrera Dominguez, and Wilbert Garcia Dominguez, Defendant.

Index No. 160580/2024


Gallo Vitucci Klar LLP, New York, NY (David Boucher of counsel), for plaintiff.

Baker Law Offices, P.C., Queens, NY (Alex A. Samaroo of counsel), for defendants SCOB LLC, and Emed Pharmacy Corporation.

Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendant Gamal Rehab PT, P.C.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 65, 66, 67, 68, 69, 70, 71, 72 were read on this motion to DEFAULT JUDGMENT.

In this no-fault-insurance-coverage action, plaintiff-insurer, Hertz Vehicles, LLC, moves under CPLR 3215 for default judgment against the non-answering defendants. The motion is granted. Plaintiff has established, through the affidavit of its claims adjuster (see NYSCEF No. 45), examinations under oath (EUOs) of defendants Jorge Diaz and Rosalee Diaz (see NYSCEF Nos. 52, 53), and other documents, that it has a well-founded belief that the no-fault-benefits [*2]claims at issue in this action arose from a staged accident for which no coverage exists.^[FN1]

Defendants SCOB, LLC, and Emed Pharmacy Corporation, assert that plaintiff’s showing is insufficient because Jorge Diaz’s unsigned EUO transcript is hearsay. (See NYSCEF No. 63 at ¶¶ 27-29.) But plaintiff is not relying on that transcript for the truth of the statements it contains. Instead, plaintiff points here to discrepancies within Jorge Diaz’s testimony, and between that testimony and other evidence in plaintiff’s possession, to explain the basis for plaintiff’s belief that the underlying accident was staged. (See NYSCEF No. 45 at ¶¶ 29-32.)

There is also no merit to the argument of SCOB and Emed (see NYSCEF No. 63 at ¶¶ 15-18, and the similar argument by defendant Gamal Rehab, PT, P.C. (see NYSCEF No. 66 at ¶¶ 37-38), that plaintiff’s motion must be denied for failure to establish that it timely mailed verification requests to defendants and timely denied their claims. The precise timing of plaintiff’s EUO requests is not relevant here, because plaintiff is not asserting an EUO-nonappearance argument. And because “an intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance” (Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2d Dept 2006]), a no-coverage defense on that ground is not subject to preclusion as untimely. (See Fair Price Med. Supply Co. v Travelers Indem. Co., 42 AD3d 277, 284-285 [2d Dept 2007] [distinguishing between a defense based on a failure to deliver billed-for medical supplies prescribed for genuine injuries (subject to preclusion) and a staged-accident defense (not subject to preclusion]), aff’d 10 NY3d 556 [2008].)

Plaintiff has thus met its burden on its default-judgment motion under CPLR 3215. Gamal Rehab, PT, P.C., cross-moves under CPLR 3012 (d), though, to compel plaintiff to accept Gamal Rehab’s untimely answer. (See NYSCEF No. 65 [notice of cross-motion].) Applying the CPLR 3012 (d) factors identified in Emigrant Bank v Rosabianca (156 AD3d 468, 472 [1st Dept. 2017])—particularly the potential merits of any defense—this court is unpersuaded that compelling plaintiff to accept the untimely answer is warranted. The cross-motion is denied.

For the foregoing reasons, plaintiff’s motion is granted, and Gamal Rehab, PT, P.C.’s cross-motion is denied, as set out more fully in the appended order.

10/7/2025
Hon. Gerald Lebovits
J.S.C.

Footnote 1:Additionally, as plaintiff points out, a no-fault arbitrator hearing claims arising from the same collision held that the plaintiff here had established its staged-accident defense by a preponderance of the evidence. (See NYSCEF No. 58 at 4-5.) This arbitral determination is not entitled to issue-preclusive effect here due to a lack of privity, except perhaps with respect to defendant Mauro Herrera Dominguez (who was the assignor in the arbitral proceeding). But that an arbitrator considering the same issue found for plaintiff bolsters the conclusion that plaintiff has met its burden under CPLR 3215 (f).