Infinity Auto Ins. Co. v. Urena

2025 NY Slip Op 32446(U)

Opinion

Infinity Auto Ins. Co. v Urena 2025 NY Slip Op 32446(U)

July 11, 2025 Supreme Court, New York County Docket Number: Index No. 152131/2024 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 07/11/2025 12:59 PM INDEX NO. 152131/2024 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 07/11/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 152131/2024 INFINITY AUTO INSURANCE COMPANY, MOTION DATE 03/28/2025 Plaintiff, MOTION SEQ. NO. 002 -v-

SURAGEE CHRISTINE URENA, ZACARIAS VARGAS SANCHEZ, A 1 MED SUPPLY, INC, ACTIVE LIFE CHIROPRACTIC, PC,AKE SERVICES INC, ALL COUNTY, LLC,AVE U EQUIPMENT INC, BETTER SOON RX INC, BOULEVARD MEDICAL CARE, PC,BRONX COUNTY MEDICAL CARE, PC,CHAI DIAGNOSTICS, LLC,CITY ORTHO TRADING, INC, CLANCY NP ADULT HEALTH, PC,COMPLETE NEUROPSYCHOLOGY, PC,CROSS BAY ORTHOPEDIC SURGERY, PC,DAVID CARMILI PHYSICIAN, PC,DIAGNOSTIC NEUROLOGY, PC,ELIYAHUS PHARMACY INC, EXPRESS DME, INC, EZ RELIEF MEDICAL, PC,FAR ROCKAWAY MEDICAL, PC,FIFTH AVENUE SURGERY CENTER, LLC,GAVRIIL KHAIMOV, HAMILTON CHIROPRACTIC, PC,HIGHLAND DECISION + ORDER ON AVE CARE, INC, HILLSIDE PHYSICAL THERAPY, PC,INSPIRED CHIROPRACTIC, PC,NEW HORIZON MOTION SURGICAL CENTER, LLC,NIT MED SUPPLY, INC, NYC GREAT SUPPLY INC, PHELAN CLANCY NP IN ADULT HEALTH, PLLC,PHYSIO REHAB PT, PC,PRECISION ANESTHESIA ASSOCIATES OF NEW JERSEY, LLC,PRIME TECH ORTHO, INC, PROFESSIONAL CHIROPRACTIC CARE, PC,PYRAMID PHYSICAL THERAPY, PC,RAMBAM ORTHO SUPPLY INC, RIDGEWOOD DRUG INC, RIGHT CHOICE PHARMACY, INC, SOLOMON HALIOUA, SOUTHWELL ACUPUNCTURE, PC,STAND-UP MRI OF THE BRONX PC,TITAN DIAGNOSTIC IMAGING SERVICES, INC, TOV MEDICAL SUPPLY INC, WAY TO REHAB PT, PC

Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 002) 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132 were read on this motion to/for JUDGMENT - SUMMARY .

This action arises out of an alleged staged motor vehicle accident. Plaintiff now moves

for summary judgment on its third cause of action, breach of condition precedent to coverage.

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FILED: NEW YORK COUNTY CLERK 07/11/2025 12:59 PM INDEX NO. 152131/2024 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 07/11/2025

Defendants, Active Life Chiropractic PC, Better Soon RX Inc, Chai Diagnostics LLC,

Diagnostic Neurology PC, Eliyahus Pharmacy Inc and Professional Chiropractic Care PC,

oppose the instant motion1. For the reasons set forth below, plaintiff’s motion for summary

judgment is granted.

Standard of Review

Under CPLR § 3212, a party may move for summary judgment and the motion “shall be

granted if, upon all the papers and proof submitted, the cause of action or defense shall be

established sufficiently to warrant the court as a matter of law in directing judgment in favor of

any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to

judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof

in admissible form sufficient to establish the existence of material issues of fact which require a

trial of the action.” Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016]. The

facts must be viewed in the light most favorable to the non-moving party, but conclusory

statements are insufficient to defeat summary judgment. Id.

Discussion

In opposition to the motion defendants contend that the motion is premature, as there has

been no discovery in this matter and plaintiff is required to provide the claim file. Although not

specifically addressed in their opposition, defendants adopt the arguments set forth by the former

defendants, referred to as the Ryback defendants, NYSCEF Doc. 115, with respect to the

argument that plaintiff has failed to satisfy its prima facie burden that the individual defendants’

failure to subscribe their EUO transcripts is breach of condition precedent. In their opposition

papers, the Ryback defendants contend that because plaintiff has failed to establish that the

1

Defendants Fifth Avenue Surgery Center LLC, New Horizon Surgical Center LLC, Physio Rehab PT, P.C., also opposed, however prior to the full submission of this motion those entities settled with the plaintiff.

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FILED: NEW YORK COUNTY CLERK 07/11/2025 12:59 PM INDEX NO. 152131/2024 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 07/11/2025

underlying EUO was timely noticed therefore rendering the EUO a nullity. The Court does not

agree.

Plaintiff annexed the notices along with the bills submitted to establish that the notice

was timely sent. Notwithstanding, the individuals attendance with counsel at the EUO, is

sufficient in this instance to establish that a timely notice was sent, thus this argument is

insufficient to raise a triable issue of fact. Because it is undisputed that failure to execute the

EUO transcript is a breach of a condition precedent to coverage, (Kemper Independence Ins. Co.

v Cornerstone Chiropractic, P.C., 185 AD3d 468, 468 [1st Dept 2020]), and defendants have

failed to raise a triable issue of fact, plaintiff’s motion for summary judgment on its third cause

of action is granted.

The Court rejects defendants’ contentions that discovery is required and thus does not

reach its argument regarding plaintiff’s obligation to provide its claim file. Accordingly, it is

hereby

ADJUDGED that plaintiff’s motion for summary judgment on its third cause of action is

granted; and it is therefore

DECLARED that plaintiff has no obligation to provide No-Fault benefits under the

Mandatory Personal Injury Protection Endorsement and Additional Personal Injury Protection

Endorsement or Uninsured/Underinsured motorist coverage under the INFINITY insurance

policy relating to the injuries allegedly sustained as a result of the December 4, 2022, alleged

loss under INFINITY claim number 22124066622.

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FILED: NEW YORK COUNTY CLERK 07/11/2025 12:59 PM INDEX NO. 152131/2024 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 07/11/2025

7/11/2025 DATE LYLE E. FRANK, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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