PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court PROGRESSIVE SPECIALTY INSURANCE CO., Plaintiff - against - DECISION AND ORDER

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1 )( SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 13 PROGRESSIVE SPECIALTY INSURANCE CO., Plaintiff - against - DECISION AND ORDER Inde)( No: /11 REGINALD ALBERT, LEON JOYETTE, CECILIA Motion Sequence No: 001 JOYETTE, FOREST DRUGS, MMC EMERGENCY Original Return Date: 10/04/11 PHYSICIAN, MMC RADIOLOGY FPP, ADVANCED MEDICAL CARE PC Individual Defendants ATLANTIC RADIOLOGY IMAGING, P.c., A VANGUARD MEDICAL GROUP PLLC, DOCTOR GOLDSHTEYN CHIROPRACTIC, P.c., EAST MID WOOD VOLUNTEER AMBULANCE CORPS, INCORPORATED, MAIMONIDES MEDICAL CENTER, METROPOLITAN MEDICAL & SURGICAL P.C., MIND AND BODY ACUPUNCTURE, P. MODERN PSYCHIATRIC SERVICES, P.c., NEW QUALITY MEDICAL, P.c., NEW WAY MEDICAL SUPPLY, CORP., ONE TO ONE REHAB P.T., P.c., PROFESSIONAL HEALTH IMAGING, P.C., and SOS MEDICAL SUPPLY, INC. ("Provider Defendants collectively, the Defendants. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court The following named papers numbered 1 to 3 were submitted on this Notice of Motion on October 2011 : Notice of Motion, Affirmation and Affdavit Affidavit in Opposition Papers numbered

2 This unopposed motion by the Plaintiff, PROGRESSIVE SPECIALTY INSURANCE CO. for an Order pursuant to CPLR 3215, granting a default judgment against the Defendants REGINALD ALBERT, FOREST DRUGS, ADVANCED MEDICAL CARE PC, ATLANTIC RADIOLOGY IMAGING, P., A VANGUARD MEDICAL GROUP PLLC DOCTOR GOLDSHTEYN CHIROPRACTIC, P., EAST MID WOOD VOLUNTEER AMBULANCE CORPS, INCORPORATED, MAIMONIDES MEDICAL CENTER, METROPOLITANMEDICAL & SURGICAL P., MIND AND BODY ACUPUNCTURE, P., MODERN PSYCHIATRIC SERVICES, P.c., NEW QUALITY MEDICAL, P., NEW WAY MEDICAL SUPPLY, CORP. ONE TO ONE REHAB P., P., PROFESSIONAL HEALTH IMAGING, P., and SOS MEDICAL SUPPL Y, INC., and setting the matter down for a hearing on the issue of damages, is decided as follows: On June 9, 2011, the Plaintiff commenced this action by fiing a Summons and Verified Complaint with the Nassau County Clerk' s offce. The Plaintiff is seeking a declaratory judgment declaring that the Plaintiff-insurer is not obligated to provide insurance coverage as a result on an incident allegedly occurring on August The Complaint alleges that the Plaintiffs insured REGINALD ALBERT, staged a motor vehicle "accident" some 22 days after the policy of insurance went into effect. The Complaint fuher alleges that the defendant REGINALD ALBERT and a passenger in the vehicle were arested for and charged with insurance fraud as a result of this accident" and that the Plaintiff had paid No-Fault benefits to medical provider assignees of Defendant ALBERT and the passenger(s). Despite requests from the Plaintiff, neither the Defendant driver (ALBERT) nor the two passengers attended E)(aminations Under Oath, although required to do so under the insurance policy as a condition for receiving No-Fault benefits. As par of its

3 damnum clause, the Plaintiff seeks reimbursement from the Provider Defendants for such sums previously paid by the Plaintiff. Defendants LEON and CECILIA JOYETTE have answered the complaint (and alleging that Defendant ALBERT was the "mastermind"for the staged accident). The Plaintiff has discontinued the action against Defendants MMC EMERGENCY PHYSICIAN and MMC RADIOLOGY FPP. In addition, the Cour has been notified that Defendants DOCTOR GOLDSHTEYN CHIROPRACTIC P., MIND AND BODY ACUPUNCTURE, PC., NEW QUALITY MEDICAL, NEW WAY MEDIAL SUPPLY, CORP. and ONE TO ONE REHAB PT, Pc. have appeared in this action and the motion for a default has been withdrawn against these Defendants. On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the sumons and complaint, proof of the facts constituting its claim, and proof ofthe defendant' s default" (Triangle Props. # 2 LLC Narang, 73 AD3d (2 Dept. 2010); see also, Atlantic Cas. Ins. Co. v. RJJServices, Inc., 89 AD3d 649 (2 Dept 2011); Integon Nat. Ins. Co. v. Norterile 88 AD3d (2 Dept. 2011)). As shown in E"hibit "D" to the moving papers, service was made upon the following defendants by serving the Secretar of State pursuant to Business Corporation Law 9306 or Limited Liabilty Company Law 9303 on July :A TLANTIC RADIOLOGY IMAGING, P.c., A VANGUARD MEDICAL GROUP PLLC, DOCTOR GOLDSHTEYN CHIROPRACTIC, P., EAST MID WOOD VOLUNTEER AMBULANCE CORPS, INCORPORATED, MAIMONIDES MEDICAL CENTER METROPOLITAN MEDICAL & SURGICAL P., MIND AND BODY ACUPUNCTURE, P. MODERN PSYCHIATRIC SERVICES, P., NEW QUALITY MEDICAL, P., NEW WAY MEDICAL SUPPLY, CORP., ONE TO ONE REHAB P., P., PROFESSIONAL HEALTH

4 IMAGING, P., and SOS MEDICAL SUPPLY, INC. Service was made upon Defendants FOREST DRUGS and ADVANCED MEDICAL CARE P.C. by leaving copies of the process with agents authorized to accept process at the premises. However, with respect to defendant REGINALD ALBERT, the Affdavit of Service of ANDREA MOLODY sworn to on July 8, 2011shows that a copy of the Sumons and Complaint was mailed to the Defendant in Pennsylvania - however, there is no indicating that a copy was aff"ed to his door or left with a person of suitable age and discretion (a necessary component under CPLR 308(2) or (4) and CPLR 313), or that mailing a copy to the defendant without acknowledgment (see, e.g. CPLR 312-a) was permissible to acquire jurisdiction under Pennsylvania law (see Greene v. Lindsey, 456 US 444 (1982)). Defendant ALBERT is the policy holder and is alleged to be the "mastermind" of the alleged scheme to defraud. As such, he is a necessar pary to this action for a declaratory judgment. Without jurisdiction over this Defendant by properly serving him with the Sumons and Complaint the Cour is without jurisdiction to declare the respective rights of the paries. Accordingly, after due deliberation, it is ORDERED, that the unopposed motion by the Plaintiff, PROGRESSIVE SPECIALTY INSURANCE CO., for an Order pursuant to CPLR 3215, granting a default judgment against the Defendants, REGINALD ALBERT, FOREST DRUGS, ADVANCED MEDICAL CARE PC ATLANTIC RADIOLOGY IMAGING, P., A VANGUARD MEDICAL GROUP PLLC, EAST MIDWOOD VOLUNTEER AMBULANCE CORPS, INCORPORATED MAIMONIDES MEDICAL CENTER, METROPOLITAN MEDICAL SURGICAL P. MODERN PSYCHIATRIC SERVICES, P., PROFESSIONAL HEALTH IMAGING, P., and SOS MEDICAL SUPPLY, INC., and setting the matter down for a hearing on the issue of damages, is

5 denied without prejudice to renewal upon proof of proper service upon Defendant REGINALD ALBERT, if not yet completed; and it is fuher ORDERED, that pursuant to CPLR 306-b in the interests of justice, and on its own motion the Cour hereby e)(tends for an additional 120 days from the date of this Decision and Order the time to effectuate proper service upon Defendant REGINALD ALBERT; and it is further ORDERED, that the attorneys for the Plaintiff shall serve a copy ofthis Decision and Order upon all Defendants served with the motion by either personally serving the Defendants or by mailing a copy by first class mail to the Defendants at their curent addresses, or if not known, at their last known addresses with a request that it be forwarded to them by the Post Office. Proof of such service shall be fied with the Cour within THIRTY (30) DAYS hereof. The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York Januar ENTER: Copy mailed to: McCormack & Mattei, P. Attorneys for Plaintiff ENTERED JAN SS"U COUNTY COUNTY CLERK' S OFF\CE