The following e-filed documents, listed by NYSCEF document number (Motion 001) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 65, 66, 67, 68, 69, 70, 71, 72 were read on this motion to DEFAULT JUDGMENT.

In this no-fault-insurance-coverage action, plaintiff-insurer, Hertz Vehicles, LLC, moves under CPLR 3215 for default judgment against the non-answering defendants. The motion is granted. Plaintiff has established, through the affidavit of its claims adjuster (see NYSCEF No. 45), examinations under oath (EUOs) of defendants Jorge Diaz and Rosalee Diaz (see NYSCEF Nos. 52, 53), and other documents, that it has a well-founded belief that the no-fault-benefits [*2]claims at issue in this action arose from a staged accident for which no coverage exists.^[FN1]

Defendants SCOB, LLC, and Emed Pharmacy Corporation, assert that plaintiff's showing is insufficient because Jorge Diaz's unsigned EUO transcript is hearsay. (See NYSCEF No. 63 at ¶¶ 27-29.) But plaintiff is not relying on that transcript for the truth of the statements it contains. Instead, plaintiff points here to discrepancies within Jorge Diaz's testimony, and between that testimony and other evidence in plaintiff's possession, to explain the basis for plaintiff's belief that the underlying accident was staged. (See NYSCEF No. 45 at ¶¶ 29-32.)

There is also no merit to the argument of SCOB and Emed (see NYSCEF No. 63 at ¶¶ 15-18, and the similar argument by defendant Gamal Rehab, PT, P.C. (see NYSCEF No. 66 at ¶¶ 37-38), that plaintiff's motion must be denied for failure to establish that it timely mailed verification requests to defendants and timely denied their claims. The precise timing of plaintiff's EUO requests is not relevant here, because plaintiff is not asserting an EUO-nonappearance argument. And because "an intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance" (Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2d Dept 2006]), a no-coverage defense on that ground is not subject to preclusion as untimely. (See Fair Price Med. Supply Co. v Travelers Indem. Co., 42 AD3d 277, 284-285 [2d Dept 2007] [distinguishing between a defense based on a failure to deliver billed-for medical supplies prescribed for genuine injuries (subject to preclusion) and a staged-accident defense (not subject to preclusion]), aff'd 10 NY3d 556 [2008].)

Plaintiff has thus met its burden on its default-judgment motion under CPLR 3215. Gamal Rehab, PT, P.C., cross-moves under CPLR 3012 (d), though, to compel plaintiff to accept Gamal Rehab's untimely answer. (See NYSCEF No. 65 [notice of cross-motion].) Applying the CPLR 3012 (d) factors identified in Emigrant Bank v Rosabianca (156 AD3d 468, 472 [1st Dept. 2017])—particularly the potential merits of any defense—this court is unpersuaded that compelling plaintiff to accept the untimely answer is warranted. The cross-motion is denied.

For the foregoing reasons, plaintiff's motion is granted, and Gamal Rehab, PT, P.C.'s cross-motion is denied, as set out more fully in the appended order.