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. 

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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 behalf of Defendants 

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 

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Page 1 of 4 

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NYSCEF DOC. NO. 137 

INDEX NO. 158834/2022 

RECEIVED NYSCEF: 09/20/2024 

( collectively "Movants"), and the documents submitted in opposition by Lindsay A. Padover, Esq. 

on behalf of Plaintiff Unitrin Safeguard Insurance Company ("Plaintiff'), Movants' motion to 

vacate the default judgment entered against them is denied. 

This is a declaratory judgment action seeking a declaration that Plaintiff does not owe nofault benefits to various medical providers, the Movants, and an individual Defendant named Ciro 

Della-Noce (see generally NYSCEF Doc. 1). Although some defendants answered, Plaintiff 

moved for default judgment against Mr. De La Cruz-Ramos and Mr. Mosquea. This Court granted 

that motion on June 26, 2023 (NYSCEF Doc. 116). On June 21, 2024, the Movants filed the instant 

motion seeking to vacate their default and extend their time to answer (NYSCEF Doc. 127). 

Movants argue that they were never properly served. Mr. De La Cruz-Ramos argues that 

although the affidavit of service claims it was made at his place of usual abode, he was living at a 

different address at the time of service. As to Mr. Mosquea, he does not dispute living at the address 

where service was effectuated but claims that vacatur is appropriate under CPLR § 31 7 because 

he never received notice of the summons and complaint in 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 of default judgment are either insufficient or non-existent. 

In opposition, Plaintiff claims that the address at which Mr. De La Cruz-Ramos was served 

was 6 Bedford Avenue, Freeport, New York (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. De La Cruz-Ramos used this address when treating with various doctors after he was 

served. His own attorney also provided this address on HIP AA authorizations after he was served. 

Plaintiff argues 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 

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NYSCEF DOC. NO. 137 

INDEX NO. 158834/2022 

RECEIVED NYSCEF: 09/20/2024 

insufficient to establish the lack of notice of the action. Plaintiff further argues that the Movants 

have failed to explain their lengthy delay in seeking vacatur. Plaintiff claims Movants fail to 

provide a meritorious defense to their failure to subscribe their EUO transcripts of Plaintiffs claim 

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 l 1st Dept 2020]). Moreover, pursuant to CPLR 31 7, 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, 23 9 AD2d 18 8 [1st Dept 1997]). The meritorious 

defense must be set forth in an affidavit from an individual with knowledge of the 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 of the 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 of a 

condition precedent to coverage and neither Movant addresses this alleged breach in any of their 

moving papers (Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). 

Therefore, vacating default pursuant to CPLR 317 or 5015 would be inappropriate and contrary to 

the CPLR and binding precedent. Movants arguments that there were insufficient affidavits of nonmilitary service is merjtless as they were annexed to Plaintiffs motion for default judgment (see 

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

15883412022 UNITRIN SAFEGUARD INSURANCE COMPANY vs. DELLA-NOCE, CIRO ET AL 

Motion No. 002 

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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 default judgment entered against them is denied; 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. 

This constitutes the Decision and Order of the 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 COMPANY vs. DELLA-NOCE, CIRO ET AL 

Motion No. 002 

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□ OTHER 

□ REFERENCE 

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