AMERICAN TRANSIT INSURANCE COMPANY v. SKY LIMIT PHYSICAL THERAPY (2020)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65 were read on this motion for SUMMARY JUDGMENT

In this motion, plaintiff American Transit Insurance Company requests a declaratory judgment that it is not required to pay no-fault benefits to the various medical-provider defendants. American Transit seeks summary judgment under CPLR 3212 against certain answering defendants and default judgment under CPLR 3215 against the remaining defendants. This motion, however, is not properly before this court, because American Transit's action has already been dismissed. The motion is denied.

This action was dismissed in May 2019 under 22 NYCRR § 202.27 due to American Transit's failure twice to appear at scheduled preliminary conferences. American Transit never moved to vacate that default dismissal. Indeed, American Transit's papers on the present motion do not even acknowledge that this action was previously dismissed, much less seek to offer a reasonable excuse for American Transit's default. This court is disinclined to deem this motion to be somehow an implicit request for vacatur of the dismissal of the action.

This court's reluctance is only heightened by the fact that American Transit's motion is not based on admissible evidence. American Transit claims that it has good reason to believe that the underlying automobile collision in this case was staged, and therefore not an insurable incident. (See Central Gen. Hosp. v. Chubb Grp. of Ins. Cos., 90 NY2d 195, 199 [1997].) But the evidence that American Transit identifies as the basis for this conclusion is a summary report that is neither sworn nor notarized, as required for it to qualify as a non-hearsay affidavit. (See NYSCEF No. 50 at 2-7.) As a result, this court could not rely on the report as a basis to vacate the dismissal of the action. (See Harris v. Krauss, 87 AD3d 469, 469 [1st Dept 2011] [reversing grant of motion to vacate under CPLR 5015, where moving papers relied on evidence in a putative affidavit that had not been properly notarized].)

Thus, even if this court were to construe the present motion liberally as an application to vacate this court's prior dismissal of this action on default—and this court declines to do so—American Transit would still fail to establish its entitlement to relief.

Accordingly, it is hereby

ORDERED that American Transit's motion is denied.

Gerald Lebovits, J.