State Farm Fire & Cas. Co. v. Poteon

2025 NY Slip Op 30660(U)

• Court: New York Supreme Court, New York County
• Decided: February 25, 2025
• Docket: Index No. 154192/2022
• Status: Unpublished

Opinion

State Farm Fire & Cas. Co. v Poteon 2025 NY Slip Op 30660(U) February 25, 2025 Supreme Court, New York County Docket Number: Index No. 154192/2022 Judge: Mary V. Rosado 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 02 /2 6 /2 02 5 04: 4 8 PM] INDEX NO· 154192/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 02/26/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------------------X INDEX NO. 154192/2022 STATE FARM FIRE AND CASUALTY COMPANY, MOTION DATE 09/27/2024 Plaintiff, MOTION SEQ. NO. 002 - V -

AKEDO POTEON, JAHVON BENJAMIN, ABDUL-MASSIH FAMILY HEALTH NURSE PRACTITIONER, P.C.,BDS DIAGNOSTIC CORP, CHI CHINESE ACUPUNCTURE, P.C.,ERIC KENWORTHY, EMUNA INC, EMOTE MEDICAL SERVICES, P.C.,GIBBONS MEDICAL, P.C.,LENOX HILL RADIOLOGY AND MEDICAL IMAGING ASSOCIATES, DECISION + ORDER ON P.C.,MICHAEL ZWIRBLIA, NEW YORK PHYSICAL THERAPY TOUCH PLLC,NY UNION PHARMACY, MOTION INC.,ONE RX CHEMIST, INC.,PRANEVICIUS MEDICAL P.C.,PRISTINE RX CORP., STAR OF N.Y. CHIROPRACTIC DIAGNOSTIC, P.C.,WALMED EQUIPMENT, LLC,WILKINS WILLIAMS MEDICAL, P.C.

Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, and after a final submission date of January 31, 2025,

Plaintiff State Farm Fire and Casualty Company's ("Plaintiff') motion for summary judgment

against Defendants Emuna Inc. d/b/a Navar Pharmacy and Pristine RX Corp. ("Defendants")

which seeks a declaration that there is no coverage for claims pertaining to an October 30, 2021

collision because individual defendants Akedo Poteon ("Poteon") and Jahvon Benjamin

("Benjamin") breached a condition precedent to coverage by failing to appear for a scheduled

Examination Under Oath ("EUO") is granted in accordance with the following memorandum and

accompanying annexed order dated February 25, 2025.

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I. Background

On October 6, 2021, Plaintiff issued an automobile insurance policy to Poteon covering a

2005 Acura MDX ("Insured Vehicle"). On October 30, 2021, Poteon and Defendant Benjamin

were allegedly in the Insured Vehicle when they were involved in an automobile accident. Police

were not called to the scene, and upon investigation, Poteon had listed a false address on his

automobile policy. After the alleged accident, Poteon and Benjamin received thousands of dollars

of alleged medical treatment from the numerous named medical provider defendants. To

investigate the claims, Plaintiff requested Poteon and Benjamin submit to an examination under

oath ("EUO"). Despite three opportunities to do so, neither Poteon nor Benjamin ever testified at

anEUO.

Plaintiff then filed this declaratory judgment action seeking a declaration that it owes no

coverage for claims submitted related to the alleged October 30, 2021 collision. Plaintiff argues

the failure to appear for an EUO is a breach of a condition precedent to coverage. All defendants

have settled or defaulted except Defendants Emuna Inc. d/b/a Navar Pharmacy and Pristine RX

Corp. Plaintiff now seeks summary judgment against these two remaining defendants.

II. Discussion

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact" (Vega v

Restani Const. Corp., 18 NY3d 499,503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party" (Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

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which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];

Pemberton v New York City Tr. Auth., 304 AD2d 340,342 [1st Dept 2003]).

Plaintiffs motion for summary judgment is granted. It is well established that the failure

to appear for a timely requested EUO "is a breach of a condition precedent to coverage and voids

the policy ab initio" (Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507, 507 [1st Dept 2021]

citing Hertz Vehicles, LLC v Alluri, 171 AD3d 432 [1st Dept 2019]). The bar to coverage also

applies to assignees of an insured (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,

PLLC, 82 AD3d 559, 560 [1st Dept 2011]). Here, it is undisputed that the medical provider

defendants were assigned Benjamin and Poteon's rights under the applicable automobile policy.

Moreover, it is undisputed that Benjamin and Poteon failed to testify at an EUO, despite three

opportunities to do so. This is a breach of a condition precedent to coverage which voids the policy

ab initio.

Defendants oppose only the sufficiency of Plaintiff's evidence. However, Plaintiff

submitted the correspondence it sent to Benjamin and Poteon requesting they appear for an EUO,

an affidavit from a claims adjuster with personal knowledge of the claims file, evidence of medical

bills submitted, and an affirmation from an attorney who scheduled the EUOs. Moreover,

Defendants failed to respond to Plaintiff's statement of material facts and have not opposed

substantively any of the operative facts set forth in Plaintiff's motion. Defendants did not submit

an affidavit of an individual with personal knowledge of the facts in opposition and rely only on

an attorney affirmation. Based on this record, Plaintiff has shown entitlement to summary

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judgment, while Defendants have failed to raise a material issue of fact. Therefore, Plaintiff's

motion is granted. 1

Accordingly, it is hereby,

ORDERED that Plaintiff's motion for summary judgment is against Defendants Emuna

Inc. d/b/a Navar Pharmacy and Pristine RX Corp. declaring there is no coverage for claims

pertaining to an October 30, 2021 collision because individual defendants Akedo Poteon and

Jahvon Benjamin breached a condition precedent to coverage by failing to appear for a scheduled

Examination Under Oath ("EUO") is granted in accordance with the annexed order dated February

25, 2025 ; and it is further

ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF and all defaulting parties via

first-class mail at their last known residential and/or business addresses.

This constitutes the Decision and Order of the Court.

2/25/2025 ~ V R.v.aJ, Jsc. DATE HON. MARY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

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

1 Defendants submitted a sur-reply without leave of th e Court and without good cause (NYSCEF Doc. 97). The Court declines to consider this unpermitted filing (see, e.g. Traders Co. v AST Sportswear, Inc., 31 AD3d 276, 277-278 [ I st Dept 2006]).

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