### Unitrin Safeguard Ins. Co. v Della-Noce 2024 NY Slip Op 33296(U) September 19, 2024 Supreme Court, New York County Docket Number: Index No. 158834/2022 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.NYSCEF DOC. NO. 137 INDEX NO. 158834/2022 RECEIVED NYSCEF: 09/20/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO Justice ------------------------------------------------------------X

UNITRIN SAFEGUARD INSURANCE COMPANY, Plaintiff,

- V - CIRO DELLA-NOCE, EDWARD MOSQUEA, WANDY DE LA CRUZ-RAMOS, 21 PHYSICAL THERAPY, PC,ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC,AILIN CHINESE ACUPUNCTURE, PC,ALL CITY FAMILY HEALTHCARE CENTER, INC.,ALL HEALTH DME, INC.,ROCKAWAYS ASC DEVELOPMENT, LLC,BL PAIN MANAGEMENT, PLLC,BORUKHOV RADIOLOGY PLLC,BOWEN, MD PLLC,CITIMED COMPLETE MEDICAL CARE PC,COMPLETE NEUROPSYCHOLOGY, PC,COMPREHENSIVE MONITORING ASSOCIATES, DLA PHYSICIAN ASSISTANT, PC,DRS SUPPLY INC.,EAST COAST MED GROUP INC.,EXPERT PHARMACY INC.,FOUR SEASONS ACUPUNCTURE, FRANKLIN RX INC.,GET WELL RX INC.,HlLLS CHIROPRACTIC PC,KDV MEDICAL, PC.KOLB RADIOLOGY, PC.KRASNER CHIROPRACTIC, PC,LENCO DIAGNOSTIC LABORATORIES, INC.,MARK L. RITCH, MAXIM ORTHOPAEDICS, PLLC,MEADOWLANDS CARDOLOGY, PC,MEGA DEAL GROUP CORP, MID-ROCKAWAY AVE MEDICAL, PC.MOTION MEDICAL DIAGNOSTIC, PC,NEXTSTEP HEALING, INC.,NIMBLE SOLUTION, INC.,NYEEQASC, LLC,ORTHOMOTION REHAB DME, INC.,PAIN RELIEF RX, INC.,PRECISE MEDICAL SOLUTIONS, LLC,PROGRESSIVE MEDICAL CARE, PC.PSYCHOLOGY 21, PC,QUALITY CARE RX, INC.,RIGHT CHOICE MEDICAL SUPPLY, INC.,RUTMAN MEDICAL, PLLC,S&M PHARMACY, SEDATION VACATION PERIOPERATIVE MEDICINE PLLC,STAR MEDICAL DIAGNOSTIC PC,TITAN PHARMACY LEVRON, INC.,NY ORTHOPEDICS, PC,WILLIAM L. KING, MD, PC Defendant. --------------------------------------------------------------------------------X PART
INDEX NO. MOTION DATE 33M 158834/2022 09/24/2024 MOTION SEQ. NO. -----'0=----=0=2
__

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 127, 128, 129, 130, 131, 132, 134, 135, 136 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD. 

### Upon the foregoing documents submitted by James Landau, Esq. on behalfofDefendants Wandy De La Cruz-Ramos ("Mr. De La Cruz-Ramos") and Edward Mosquea's ("Mr. Mosquea")

158834/2022 UNITRIN SAFEGUARD INSURANCE COMPANY vs. DELLA-NOCE, CIRO ET AL Motion No. 002
1 of 4 Page 1 of4 

### [* 1]NYSCEF DOC. NO. 137 INDEX NO. 158834/2022 RECEIVED NYSCEF: 09/20/2024
(collectively "Movants"), andthe documents submittedin oppositionby Lindsay A. Padover, Esq.
on behalf of Plaintiff Unitrin Safeguard Insurance Company ("Plaintiff'), Movants' motion to vacate the defaultjudgment entered againstthem is denied. This is a declaratoryjudgmentaction seeking a declaration that Plaintiffdoes not owe nofault benefits to various medicalproviders, the Movants, and an individual DefendantnamedCiro Della-Noce 

### (see generally NYSCEF Doc. 1). Although some defendants answered, Plaintiff moved for defaultjudgmentagainstMr. De La Cruz-Ramos and Mr. Mosquea. This Court granted thatmotiononJune 26, 2023 (NYSCEFDoc. 116). OnJune 21, 2024, theMovantsfiled the instant motion seeking to vacate their default and extend theirtime to answer (NYSCEF Doc. 127). Movants argue that they were never properly served. Mr. De La Cruz-Ramos argues that although the affidavit ofservice claims it was made at his place ofusual abode, he was living at a different address atthetime ofservice. Asto Mr. Mosquea,he does notdispute living atthe address where service was effectuated but claims that vacatur is appropriate under CPLR § 31 7 because heneverreceivednotice ofthe summons andcomplaintin time to defend. The Movants also argue that they have a reasonable excuse for vacatur under CPLR 

### § 5015(a)(l) because "they did not know about the action." Finally, Movants argue that the non-military affidavits proffered in support ofdefaultjudgmentare either insufficient ornon-existent. In opposition, Plaintiffclaims thatthe address at whichMr. De LaCruz-Ramoswas served
was 6 BedfordAvenue, Freeport, NewYork (the "Bedford Address"). This is the same address he provided at his examination under oath and the address listed on his application for no-fault benefits. Mr. DeLaCruz-Ramosused this address whentreating with various doctors after he was served. His own attorney also provided this address onHIPAAauthorizations after he was served. Plaintiffargues the mere denial that a defendant did not receive the summons and complaint is

158834/2022 UNITRIN SAFEGUARD INSURANCE COMPANY vs. DELLA-NOCE, CIRO ET AL Motion No. 002

2 of 4 Page 2 of 4 

### [* 2]NYSCEF DOC. NO. 137 INDEX NO. 158834/2022 RECEIVED NYSCEF: 09/20/2024



### insufficient to establish the lack ofnotice ofthe action. Plaintifffurther argues that the Movants have failed to explain their lengthy delay in seeking vacatur. Plaintiff claims Movants fail to provide a meritorious defenseto their failure to subscribe theirEUO transcripts ofPlaintiffsclaim that the accident was staged. The First Department has held that conclusory denial of receipt of a summons and complaint is insufficient to rebut the presumption of service (Country-Wide Ins. Co. v Power Supply, Inc., 

### 179 AD3d 405 

## l1st Dept 2020]). Moreover, pursuant to CPLR 317, a defendant seeking vacatur must establish a meritorious defense (Castillo v 2460 Tiebout Ave. Associates, LLC, 

### 209 AD3d 518 [1st Dept 2022]). Failure to adequately demonstrate a meritorious defense is fatal to a motion to vacate (Peacock v Kalikow, 

### 239 AD2d 188 [1st Dept 1997]). The meritorious defense must be set forth in an affidavit from an individual with knowledge ofthe facts and must make sufficient factual allegations, not mere conclusory or vague assertions (id 

### at 190). Here, the affidavits of Mr. De La Cruz-Ramos and Mr. Mosquea do not address their defenses to Plaintiffs claims at all but merely assert they did not receive notice ofthe summons and complaint. The failure to provide a meritorious defense, set forth with factual assertions, is insufficient to vacate default. Failure to subscribe an EUO transcript constitutes a violation ofa condition precedent to coverage and neither Movant addresses this alleged breach in any oftheir moving papers (Hertz Vehicles, LLC v Best Touch PT, P.C., 

### 162 AD3d 617 [1st Dept 2018]). Therefore, vacating default pursuantto CPLR 317 or 5015 would be inappropriate and contrary to the CPLRand bindingprecedent. Movants argumentsthatthere were insufficient affidavits ofnonmilitary service is merjtless as they were annexed to Plaintiffs motion for defaultjudgment (see 

### NYSCEF Doc. 66). Thus, the motion is denied.

15883412022 UNITRIN SAFEGUARD INSURANCE COMPANY vs. DELLA-NOCE, CIRO ET AL Motion No. 002
3 of 4 Page 3 of4 

### [* 3]NYSCEF DOC. NO. 137


### Accordingly, it is hereby, INDEX NO. 158834/2022 RECEIVED NYSCEF: 09/20/2024



### ORDERED that Defendants Wandy De La Cruz-Ramos and Edward Mosquea's motion seeking to vacate the defaultjudgment entered against them is denied; and it is further ORDERED that within ten days ofentry, counsel for Plaintiff shall serve a copy ofthis Decision and Order, with notice ofentry, on all parties viaNYSCEF. This constitutes the Decision and Order ofthe Court. 9/19/2024 DATE : ROSADO, J.S.C.
CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

# 8 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

15883412022 UNITRIN SAFEGUARD INSURANCE COMPANYvs. DELLA-NOCE, CIRO ET AL Motion No. 002

4 of 4

### □ OTHER**□** REFERENCE

Page 4 of4 

### [* 4]