SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART ----------- -------------- -- J( NATIONAL CONTINENTAL INS. COMPANY Plaintiff DECISION AND ORDER -against- KOOL AID GROUP INC, EMEKA ADIGWE SHAMALL BREWSTER, ACCELERATED MEDICAL SUPPL Y INC., HEALTH AND PROGRESS CHIROPRACTIC PC., KINGS COUNTY MEDICAL SERVICES PC., MERIDIAN PSYCHOLOGICAL SERVICES PC., OSH MODERN ART ACUPUNCTURE PC., STAND UP MRI OF BROOKLYN PC., UNITED MEDICAL OFFICES OF LONG ISLAND PC Index No. 000520/12 Original Retur date: 6/12/12 Motion seq. No. 002 PRESENT: HON. JOEL K. Defendants. ----------- ------------- J( AS ARCH, Justice of the Supreme Court. The following named papers numbered 1 to 3 were submitted on this Notice of Motion on June 12 2012: Pavers numbered Notice of Motion, Affrmation and Affidavit: Affirmation in Opposition: Reply Affirmation: The unopposed motion by Plaintiff NATIONAL CONTINENTAL INSURANCE COMP ANY, for an Order pursuant to CPLR 3215, granting a default judgment against the Defendants EMEKA ADIGWE SHAMALL BREWSTER, KIGS COUNTY MEDICAL SERVICES PC, and UNITED MEDICAL OFFICES OF LONG ISLAND PC, is decided as follows: This action was commenced on Januar 13 2012 by the filing of the Summons and Verified
Complaint with the Nassau County Clerk' s office and the purchase of an index number. The Plaintiff seeks a declaratory judgment defining the rights and obligations of the paries under a policy of insurance issued by the Plaintiff to Defendant KOOL AID GROUP INC. Specifically, Plaintiff seeks a judgment declaring that it has no obligation to defend, indemnify or pay on said insurance policy as a result of an alleged motor vehicle accident occuring on July 6, 2011 on East 8 Street in Brooklyn, New York. In seeking benefits, the Defendants have alleges that Plaintiffs insured' vehicle, driven by Defendant ADIGWE (with Defendant BREWSTER and one Keysha Nelson as passengers), was struck in the rear by another motor vehicle, which fled the scene. The Plaintiffs investigation has concluded that the incident was a "staged accident". After obtaining a statement from Defendant ADIGWE and conducting an Examination under Oath of Defendant BREWSTER as par of their investigation, Plaintiff has been led to believe that claims emanating from this incident are fraudulent. The conduct of the paries after the incident, the minor damage to the Plaintiffs insured' s vehicle, the inability of the Plaintiffs investigators to locate the other passenger (who called the police to the scene) after the accident, the conflicting reasons as to why the passengers were in the mechanic s shop s vehicle, among other reasons set forth in the moving papers, all lead the Plaintiff to conclude that the incid nt was staged and that the attempt to obtain benefits as a result thereof is fraudulent. By Decision and Order dated June 22, 2012, the Cour stayed all current proceedings lawsuits and arbitrations (including with the American Arbitration Association) concerning no- fault Pursuant to stipulation(s), the action has been discontinued against Defendants STAND UP MRI OF BROOKL YN, PC, KOOL AID GROUP INC., ACCELERATED MEDICAL SUPPLY, INC. HEALTH AND PROGRESS CHIROPRACTIC PC., MERIDIAN PSYCHOLOGICAL SERVICES PC. and OSH MODERN ART ACUPUNCTURE PC.
benefits, uninsured motorist benefits, personal injur and liability/indemnity coverage involving any and all of the remaining Defendants, EMEKA ADIGWE, SHAMALL BREWSTER, KIGS COUNTY MEDICAL SERVICES PC and UNITED MEDICAL OFFICES OF LONG ISLAND PC arising from the motor vehicle incident occurng on July 6, 2011 An intentional and staged collsion caused in the fuherance of an insurance fraud scheme is not a covered accident (Liberty Mut. Ins. Co. v. Goddard 29 AD3d 698 (2nd Dept. 2006); Eagle Ins. Co. v. Davis 22 AD3d 846 (2 Dept. 2005)). In determining whether an intentional act exclusion in an automobile policy applies, the dispositive question is whether there is any possible factual or legal basis upon which to find that the bodily injuries inflcted upon the plaintiff were not expected or intended by the insured (New York Cent. Mut. Fire Ins. Co. v. Wood 36 AD3d 1048 (3 Dept. 2007)). The actions of the Defendants and Keysha Nelson lend credence to the Plaintiffs argument that this was a "stage accident" 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 of the defendant' s default" (Triangle Props. # 2 LLC Narang, 73 AD3d 1030, 1032 (2 Dept. 2010); see also, Atlantic Cas. Ins. Co. v. RJNJ Services, Inc. 89 AD3d 649 (2 Dept 2011); Integon Nat. Ins. Co. v. Norterile 88 AD3d 654 655 (2 Dept. 2011)). As shown in Exhibit "I" to the moving papers, service was made upon the Defendants against whom a default judgment is now sought: (a) upon Defendants EMEKA ADIGWE and SHAMALL BREWSTER pursuant to CPLR 308(4) by affixing copies of the process upon the doors to defendants' places of abode after several attempts to serve each defendant during hours when the defendants could reasonably be expected to be at home, mailng additional copies and fiing proof
of service with the Cour on March 14, 2012; and (b) upon Defendants KIGS COUNTY MEDICAL SERVICES PC. and UNITED MEDICAL OFFICES OF LONG ISLAND PC by serving the Secretar of State pursuant to Business Corporation Law 306 on Januar 30, 2012. Proof of service was filed with the Nassau County Clerk' s Office on Februar 14, 2012. The hereinabove named Defendants have been duly and timely served with the Sumons and Verified Complaint in the instant action and have failed to appear, answer, seek any extension of time to do so or otherwise move this Cour for any relief herein. In support of its motion for a default judgment, the Plaintiffhas established through affdavits of service that it properly served the Summons and Verified Complaint on the Defendants against whom it now seeks a default judgment, additional notice has been given pursuant to CPLR 3215(f), 3215(g)(4)(i) and 3215(g)(4)(ii), and that none of those paries have appeared or otherwise sought relief in connection with this action. It has also established the merits of its claims. (See Joosten Gale 129 AD2d 531 (1 Dept. 1987)),. More specifically, it has established without opposition that as a result of the actions of the individual Defendants and another in creating the July 6, 2011 incident, the incident is not a covered event under the policy of insurance herein. Thus, after due deliberation, it is, on motion of McCORMACK AND MATTEI, P. attorneys for the Plaintiff ORDERED, that the Plaintiff s motion for a default judgment against Defendants EMEKA ADIGWE, SHAMALL BREWSTER, KINGS COUNTY MEDICAL SERVICES PC and UNITED MEDICAL OFFICES OF LONG ISLAND PC is granted. The Plaintiff is granted judgment as requested in the ad damnum clause of the Verified Complaint, to wit: the insurance policy issued to Defendant KOOL AID GROUP, INC. is null and void with respect to the aforementioned incident
of July 6, 2011, as a result of which the Plaintiff has no duty to defend any of the defaulting Defendants under the aforementioned policy of insurance in any action or proceeding brought to recover damages as a result of the incident of July 6 2011 or to provide coverage for any claims for no-fault or uninsured motorist benefits made by any of the defaulting Defendants under the, 2011; and it is fuher aforementioned policy in connection with the incident occurring on July 6 ORDERED, that the Plaintiff s attorneys shall serve a copy of this Decision and Order either personally or by first class mail on or before August 15 2012 upon all Defendants served with the motion papers herein; and it is fuher ORDERED, that within SIJ(TY (60)DA YS hereof, theplaintiffshallsettleajudgmentherein pursuant to CPLR 3001. The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York July 19, 2012 ENTER: Copies mailed to: McCormack & Mattei, PC Attorneys for Plaintiff ENTERED JUL 2 0 2012 Nr\vvAU COUNTY COUNTY CLERK' S OFFiCe