FILED: NEW YORK COUNTY CLERK 10/25/2024 01:06 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 159688/2023
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`RECEIVED NYSCEF: 10/25/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`----------------------------------------------------------------------x Index Number: 159688/2023
`STATE FARM MUTUAL AUTOMOBILE INSURANCE
`COMPANY,
`
`
`
`
`
`
`
`Plaintiff,
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`
`
`
`AFFIRMATION IN OPPOSITION
`TO PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT
`
`
`
`-against-
`
`
`
`
`223 GRAND COUNCORSE MEDICAL P.C. APP
`SUPPLY INC., BEDFORD MEDICAL CARE P.C.,
`BETTER SOON RX INC, BHNM TECH SERVICES,
`INC., DYNAMIC MEDICAL IMAGING P.C.,
`EAST TREMONT MEDICAL CENTER a/k/a UPTOWN
`HEALTH CARE MANAGEMENT, INC.,
`EMED PHARMACY CORPORATION, EMPIRE CITY
`LABORATORIES, INC., RAFAEL YAAKOV NP d/b/a
`FUTURE CARE INTERNAL MEDICINE, HEALTHY
`ELITE INC., LENUXE SUPPLY INC., NEW SENSE
`ACUPUNTURE P.C., NEXT GENERATION
`DIAGNOSTIC IMAGING, P.C., NOVA TECH SUPPLY
`INC., PITCH MEDICAL, P.C., PIVOTAL CARE
`PHYSICAL THERAPY, P.C., S&K WARBASSE
`PHARMACY INC., SAFER PHARMACY, INC.,
`SHMUEL GOLFEYZ, M.D., CHRISTOPHER COX,
`KEITH MOORE a/k/a KENNETH MOORE, CHAD
`CHAMBERS and TREVOR SAMUEL,
`
`Defendants.
`
`
`
`
`-------------------------------------------------------------------x
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`
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`Austen O. Ugweches, Esq., an Attorney duly admitted to practice law before the
`
`Courts of the State of New York, affirms under penalties of perjury that:
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`1. I am with the law firm of GARY TSIRELMAN, PC., the attorneys for
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`defendants BETTER SOON RX INC., and SAFER PHARMACY, INC., and as such, I
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`am familiar with all the facts and circumstances surrounding this matter based upon
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`review of the file maintained by the office.
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`1 of 6
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`NYSCEF DOC. NO. 62
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`INDEX NO. 159688/2023
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`RECEIVED NYSCEF: 10/25/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`----------------------------------------------------------------------x Index Number: 159688/2023
`STATE FARM MUTUAL AUTOMOBILE INSURANCE
`COMPANY,
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`AFFIRMATION IN OPPOSITION
`TO PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT
`
`
`
`-against-
`
`
`
`
`223 GRAND COUNCORSE MEDICAL P.C. APP
`SUPPLY INC., BEDFORD MEDICAL CARE P.C.,
`BETTER SOON RX INC, BHNM TECH SERVICES,
`INC., DYNAMIC MEDICAL IMAGING P.C.,
`EAST TREMONT MEDICAL CENTER a/k/a UPTOWN
`HEALTH CARE MANAGEMENT, INC.,
`EMED PHARMACY CORPORATION, EMPIRE CITY
`LABORATORIES, INC., RAFAEL YAAKOV NP d/b/a
`FUTURE CARE INTERNAL MEDICINE, HEALTHY
`ELITE INC., LENUXE SUPPLY INC., NEW SENSE
`ACUPUNTURE P.C., NEXT GENERATION
`DIAGNOSTIC IMAGING, P.C., NOVA TECH SUPPLY
`INC., PITCH MEDICAL, P.C., PIVOTAL CARE
`PHYSICAL THERAPY, P.C., S&K WARBASSE
`PHARMACY INC., SAFER PHARMACY, INC.,
`SHMUEL GOLFEYZ, M.D., CHRISTOPHER COX,
`KEITH MOORE a/k/a KENNETH MOORE, CHAD
`CHAMBERS and TREVOR SAMUEL,
`
`Defendants.
`
`
`
`
`-------------------------------------------------------------------x
`
`
`
`
`Austen O. Ugweches, Esq., an Attorney duly admitted to practice law before the
`
`Courts of the State of New York, affirms under penalties of perjury that:
`
`1. I am with the law firm of GARY TSIRELMAN, PC., the attorneys for
`
`defendants BETTER SOON RX INC., and SAFER PHARMACY, INC., and as such, I
`
`am familiar with all the facts and circumstances surrounding this matter based upon
`
`review of the file maintained by the office.
`
`
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`1
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`1 of 6
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`FILED: NEW YORK COUNTY CLERK 10/25/2024 01:06 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 159688/2023
`
`RECEIVED NYSCEF: 10/25/2024
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`2. I respectfully submit this Affirmation in Opposition to the within plaintiff’s
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`motion purportedly for default judgment as against defendants BETTER SOON RX
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`INC., and SAFER PHARMACY, INC., in that such a motion against these two named
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`defendants is misplaced as defendants BETTER SOON RX INC., and SAFER
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`PHARMACY, INC., had already appeared and duly interposed its Answer with
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`Counterclaims on the within action.
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`3. The within plaintiff’s motion for default as it pertains to these particular
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`defendants, BETTER SOON RX INC., and SAFER PHARMACY, INC., is completely
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`unwarranted, and might be deemed as frivolous motion practice. In the underlying
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`action, plaintiff alleged, without any evidence, in effect, with several assertions that the
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`multiple named defendants engaged in some nefarious no-fault insurance misdeeds.
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`However, defendants BETTER SOON RX INC., and SAFER PHARMACY, INC., upon
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`retaining the undersigned attorneys’ law firm, which conducted its factual investigation,
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`appeared and interposed their own Answer with Counterclaims to the plaintiff’s
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`Summons and Complaint for defendants BETTER SOON RX INC., and SAFER
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`PHARMACY, INC., which were duly filed with the Court, [*ECF 26].
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`4. Thus, there is no reasonable ground for plaintiff to bring forth the within
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`motion for default judgment, especially as it pertains to the appearing defendants
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`BETTER SOON RX INC., and SAFER PHARMACY, INC., as they already filed their
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`Answer with the Court on the plaintiffs’ action. And defendants BETTER SOON RX
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`INC., and SAFER PHARMACY, INC., are not required to do anything else other than
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`participate in discovery on the plaintiff’s action. And if the plaintiff, for some reasons,
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`decided that defendants BETTER SOON RX INC., and SAFER PHARMACY, INC.’s
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`2
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`2 of 6
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`FILED: NEW YORK COUNTY CLERK 10/25/2024 01:06 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 159688/2023
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`RECEIVED NYSCEF: 10/25/2024
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`Answer was tardy, they did not move timely for any default judgment prior to defendants
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`BETTER SOON RX INC., and SAFER PHARMACY, INC., filing their Answer on the
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`Complaint, and even if plaintiffs claim that they rejected the duly filed Answer with the
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`Court, such rejection, if any, was not properly asserted and was not filed with the Court.
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`5. In any event, a motion for leave to enter a default judgment is directed to the
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`Court’s discretion. The Court can deny such a motion even if plaintiff satisfies the basic
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`statutory requirements for a default. See Peg Bandwidth, LLC v. Opt. Commc’ns, 56
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`N.Y.S.3d 66, 66-67 (1st Dep’t 2017); Schimoler v. Newman, 107 N.Y.S.3d 111, 113-14
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`(2nd Dep’t). The Court weighs the application against the New York’s public policy to
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`resolve cases on the merits (Yongjie Xu v. JJW Enters., Inc., 53 N.Y.S.3d 660, 661 (2nd
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`Dep’t 2017); US Bank Nat. Ass’n v. Richards, 65 N.Y.S.3d 178, 180 (1st Dep’t 2017).
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`6. Moreover, a court could deny the plaintiff’s motion for default judgment where
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`there is a failure to submit evidence of liability. See 215 W. 28th St. Prop. Owner, LLC v.
`
`Sibk Constr. Group LLC, 2020 NY Slip Op. 34045(U). In that case, the plaintiff’s motion
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`for default judgment was denied because plaintiff failed to submit adequate evidence of
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`liability under CPLR Section 3215. And in the instant case, this case is in its infantile
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`stage with no discovery, such as any depositions, conducted on the action. Thus, other
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`than the plaintiffs’ own assertions on their allegations contained in their complaint
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`against the named defendants, no evidence has been adduced as against the
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`defendants in this action. And no self-serving assertions could cure the defect on the
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`needed evidentiary proof for the plaintiffs’ prima facie case.
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`7. Based upon the foregoing reasons, the Court should deny the plaintiff’s within
`
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`3
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`3 of 6
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`FILED: NEW YORK COUNTY CLERK 10/25/2024 01:06 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 159688/2023
`
`RECEIVED NYSCEF: 10/25/2024
`
`motion for default judgment in its entirety, especially as it pertains to defendants
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`BETTER SOON RX INC., and SAFER PHARMACY, INC., which duly appeared on the
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`action, and interposed its Answer with Counterclaims.
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`WHEREFORE, defendants BETTER SOON RX INC., and SAFER
`
`PHARMACY, INC., respectfully request that the Court deny the plaintiff’s unwarranted
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`motion for default judgment as against them in its entirety in that they had duly
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`appeared and interposed their Answer to the plaintiff’s Summons and Complaint as
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`required, and award costs against the plaintiff with reasonable attorneys’ fees to be
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`decided by the Court, as the plaintiff’s motion could be deemed as a frivolous motion
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`practice, and for such other and further relief as this Honorable Court may deem just
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`and proper.
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`DATED: Brooklyn, New York
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` October 24, 2024
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`_Austen Ugweches_________
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`Austen Ugweches, Esq.
`
`
`TO: GALLO, VITUCCI KLAR LLP,
`Attorneys for the Plaintiff;
`
`
`
`334 GRAND CONCOURSE MEDICAL P.C., et al.
`The named Defendants Herein.
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`4
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`4 of 6
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`FILED: NEW YORK COUNTY CLERK 10/25/2024 01:06 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 159688/2023
`
`RECEIVED NYSCEF: 10/25/2024
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`----------------------------------------------------------------------x Index Number: 159688/2023
`STATE FARM MUTUAL AUTOMOBILE INSURANCE
`COMPANY,
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`OPPOSITION TO MOTION
`FOR DEFAULT JUDGMENT
`
`
`
`-against-
`
`
`
`223 GRAND COUNCORSE MEDICAL P.C. APP
`SUPPLY INC., BEDFORD MEDICAL CARE P.C.,
`BETTER SOON RX INC, BHNM TECH SERVICES,
`INC., DYNAMIC MEDICAL IMAGING P.C.,
`EAST TREMONT MEDICAL CENTER a/k/a UPTOWN
`HEALTH CARE MANAGEMENT, INC.,
`EMED PHARMACY CORPORATION, EMPIRE CITY
`LABORATORIES, INC., RAFAEL YAAKOV NP d/b/a
`FUTURE CARE INTERNAL MEDICINE, HEALTHY
`ELITE INC., LENUXE SUPPLY INC., NEW SENSE
`ACUPUNTURE P.C., NEXT GENERATION
`DIAGNOSTIC IMAGING, P.C., NOVA TECH SUPPLY
`INC., PITCH MEDICAL, P.C., PIVOTAL CARE
`PHYSICAL THERAPY, P.C., S&K WARBASSE
`PHARMACY INC., SAFER PHARMACY, INC.,
`SHMUEL GOLFEYZ, M.D., CHRISTOPHER COX,
`KEITH MOORE a/k/a KENNETH MOORE, CHAD
`CHAMBERS and TREVOR SAMUEL,
`
`Defendants.
`
`
`
`
`-------------------------------------------------------------------x
`
`
`S&K WARBASSE PHAMACY INC
`SEONGEUN KIM PHYSICAL THERAPY PC
`STAND-UP MRI OF THE BRONX,
`
`
`
`
`
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`Medical Provider Defendants,
`
`
`
`Collectively, Defendants.
`
`
`
`
`-------------------------------------------------------------------x
` __________________________________________________________________
`
`
`DEFENDANTS’ AFFIRMATION IN OPPOSITION TO PLAINTIFF’S
`DEFEAULT JUDGMENT MOTION,
`
`
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`5
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`5 of 6
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`FILED: NEW YORK COUNTY CLERK 10/25/2024 01:06 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 159688/2023
`
`RECEIVED NYSCEF: 10/25/2024
`
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`____________________________________________________________________
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` Yours, etc.,
`
` Gary Tsirelman, P.C.,
`Attorneys for defendants BETTER SOON RX INC., and
`SAFER PHARMACY, INC.,
`
`
` By: Austen Ugweches, Esq.,
`
` 129 Livingston Street,
` Brooklyn, New York 11201
` Tel.: 718-438-1200
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`6 of 6
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