| American Tr. Ins. Co. v Solorzano |
| 2013 NY Slip Op 05179 [108 AD3d 449] |
| July 9, 2013 |
| Appellate Division, First Department |
| American Transit Insurance Company,Appellant, v Yolanda Solorzano et al., Defendants, and Advanced Orthopaedics,P.L.L.C., et al., Respondents. |
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Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 10,2013, which denied plaintiff's motion for summary judgment against defendant NewYork Spine Specialists (NYSS) and for a default judgment against the nonappearingdefendants, and granted NYSS and defendant Advanced Orthopaedics' motion to dismissthe complaint as against them pursuant to CPLR 3211 (a) (4), unanimously modified, onthe law, to grant plaintiff's motion for summary judgment as against NYSS and, upon asearch of the record, Advanced, and it is declared that there is no coverage with respectto the injured defendant's accident under plaintiff's policy, to deny NYSS and Advanced'smotion to dismiss, and, as to the defaulting defendants other than Advanced, otherwiseaffirmed, without costs, and the appeal from the denial of plaintiff's motion for a defaultjudgment as against Advanced unanimously dismissed, without costs, as moot.
Although plaintiff was not entitled to a default judgment, because it failed to complywith CPLR 3215 (g) (4) (ii), it demonstrated its entitlement to summary judgment bysubmitting competent evidence of the mailing of the notices scheduling the injureddefendant's independent medical examinations and of her failure to appear (see Unitrin Advantage Ins. Co. vBayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied17 NY3d 705 [2011]). Under the circumstances, it was an improvident exercise ofdiscretion to dismiss this action because of [*2]twopending Civil Court actions, particularly in favor of Advanced, which had defaulted inthis action (see Holubar vHolubar, 89 AD3d 802 [2d Dept 2011]). Concur—Tom, J.P., Acosta,Saxe and Freedman, JJ.