Decided on July 21, 2023

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), entered April 5, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits arising out of a March 9, 2015 accident, defendant moved for summary judgment dismissing the first through fifth and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and dismissing the sixth cause of action on the ground that it was barred by an April 18, 2019 declaratory judgment issued by the Supreme Court, Nassau County, in an action commenced by defendant herein against plaintiff herein in regard to the same March 9, 2015 accident. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered April 5, 2022, the Civil Court (Ellen E. Edwards, J.) granted defendant’s motion for summary judgment on the ground that plaintiff had failed to appear for duly scheduled EUOs and denied plaintiff’s cross-motion.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel [*2]Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

With respect to the branch of defendant’s motion seeking summary judgment dismissing the sixth cause of action, defendant demonstrated that the assignor, accident date, and date of service in the Supreme Court declaratory judgment action were identical to those for the claim underlying the sixth cause of action in the instant case. Consequently, that cause of action was barred under the doctrine of res judicata by virtue of the April 18, 2019 declaratory judgment and, thus, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing that cause of action (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), albeit on other grounds, since a judgment in favor of plaintiff upon the sixth cause of action in this action would destroy or impair rights or interests established by the declaratory judgment (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Contrary to plaintiff’s sole contention on appeal with respect to so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing the first through fifth and seventh causes of action, the affidavit of defendant’s employee was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing those causes of action.

Accordingly, the order is affirmed.

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 9, 2021. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to provide requested verification. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. In an order entered December 9, 2021, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion and, upon implicitly denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that plaintiff timely submitted the bills at issue to defendant. As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment.

The proof submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed its initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that defendant had not received the requested verification (see American Kinetics Lab, Inc. v GEICO Gen. Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51267[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). As defendant further demonstrated that it had timely denied plaintiff’s [*2]claims (see 11 NYCRR 65-3.5 [o]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16, 18-19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Plaintiff’s owner’s statement that he had mailed the requested verification “to the extent such responses were proper and in [his] possession” does not raise a triable issue of fact, as it does not “demonstrate that [plaintiff] had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 2022 NY Slip Op 50623[U], *1-2; see 11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 2019 NY Slip Op 50576[U], *1). To the extent plaintiff argues that the verification requests were improper since they were issued after plaintiff had appeared for an examination under oath (EUO), this argument lacks merit, as the EUO pertained to claims for a different assignor, and was held five months before the claims at issue were submitted.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

Index No. 650571/2022

Correia, Conway & Stiefeld, White Plains, NY (Melissa D. Broder of counsel), for plaintiffs.

No appearances for defendants.

This is a no-fault-insurance coverage action. Plaintiffs, Liberty Mutual Insurance Company and LM General Insurance Company (Liberty Mutual), denied the no-fault-benefits claims of the alleged injured person, defendant Nordigay Anderson, and the other defendants, medical-provider-assignees of Anderson’s, on the ground that Anderson had materially misrepresented the insured vehicle’s garaging address and the identity of the vehicle’s operators. Liberty Mutual has brought this action for a judgment declaring, in essence, that it has no duty to pay those claims.

Liberty Mutual now moves without opposition for default judgment under CPLR 3215 against non-answering defendants Anderson, ADV Diagnostic Inc., Aztec Medical PA, Citimed [*2]Surgery Center, LLC, Good Samaritan Hospital Medical Center, and Laxmidhar Diwan MD. The motion is denied.

No-fault benefits claims must be paid or denied “[w]ithin 30 calendar days after proof of claim is received.” (11 NYCRR 65-3.8 [c].) Proof of claim “shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart,” such as requests that an injured person or medical-provider-assignee appear for an examination under oath (EUO). (Id. § 65-3.8 [a] [1].) an insurer’s failure to deny a claim within that 30-day period will generally preclude the insurer from asserting a defense against payment of the claim. (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008].)

An exception to this preclusion rule exists where the ground for denying the claim (or defending against a claim to payment) is a lack of coverage in the first instance. (Id.) But the denial of a no-fault claim on the ground that the policyholder made material misrepresentations in obtaining the policy does not come within this preclusion exception. (See Liberty Mutual Ins. Co. v Brutus, 2022 NY Slip Op 50799[U], at *4 [Sup Ct, NY County Aug. 16, 2022], citing Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604-605 [2d Dept 2011].)

In short, Liberty Mutual may not raise material misrepresentations as a defense to the no-fault claims at issue in this action unless it denied those claims within 30 days after receiving proof of claim.

Liberty Mutual first sought verification from Anderson, in the form of an EUO, by letter dated June 29, 2021. (See NYSCEF No. 25.) Liberty Mutual conducted that EUO on July 12, 2021. (See NYSCEF No. 26 [EUO transcript].) Liberty Mutual later interviewed Anderson’s father (the vehicle operator named on the policy) on August 3, 2021 (see NYSCEF No. 27 [interview transcript]); and issued claim denials two days later, on August 5 (see NYSCEF No. 28.)

Thus, it appears on this record that Liberty Mutual denied the claims at issue within two days after obtaining the additional verification that it sought from Anderson and her father. That chronology, though, does not resolve the crucial question whether the 30-day period to pay or deny ran before Liberty Mutual first sought that verification on June 29. That is, if Liberty Mutual received benefits claims more than 28 calendar days before issuing the EUO request letter on June 29, 2021, the August 5, 2021, denial would be untimely with respect to those claims.^[FN1]

Liberty Mutual has not established on this motion that its denials were timely with respect to each of the defendants against whom it seeks default judgment. At most, Liberty Mutual has submitted a delay letter that it sent on June 4, 2021, to defendant Good Samaritan Hospital Medical Center (see NYSCEF No. 24 at 3-4); and Liberty Mutual’s counsel represents in an affirmation that delay letters were also sent “to the medical provider defendants who had submitted NF-3s or bills” as of early June 2021 (NYSCEF No. 13 at ¶ 29). But a delay letter that does not itself request verification from the recipient will not toll the 30-day pay-or-deny period. [*3](Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2d Dept 2009]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2d Dept 2005].)

On this record, therefore, Liberty Mutual has not established the facts constituting its claims against the non-appearing defendants.

Accordingly, it is

ORDERED that Liberty Mutual’s motion for default judgment is denied; and it is further

ORDERED that if Liberty Mutual does not file a renewed default-judgment motion against the defaulting defendants within 30 days of entry of this order, the action will be dismissed as against those defendants; and it is further

ORDERED that Liberty Mutual serve a copy of this order with notice of its entry on all appearing parties by e-filing on NYSCEF; and on all non-appearing parties by certified mail, return receipt requested, directed to their respective last-known addresses.

Footnotes

Footnote 1:This calculation adds together the days elapsed before Liberty Mutual sought additional verification of the claim with the two days elapsed after Liberty Mutual obtained that verification upon interviewing Anderson’s father. (See 11 NYCRR 65-3.8 [a] [1] [“In the case of an examination under oath . . . the verification is deemed to have been received by the insurer on the day the examination was performed.”].)

[*1]

Civil Court of the City of New York, Queens County, June 30, 2023

APPEARANCES OF COUNSEL

Hollander Legal Group, P.C., Melville (Justin A. Calabrese of counsel), for defendant.

Law Offices of Gabriel & Moroff, P.C., Rockville Centre (John E. Fagan of counsel), for plaintiff.

Defendant’s motion for summary judgment and to dismiss plaintiff’s complaint on the grounds that plaintiff assignor failed to appear for four duly and timely scheduled examinations under oath (EUO) is granted in its entirety, and plaintiff’s cross-motion is denied. Plaintiff’s argument that defendant failed to establish timely denial, in that denial exceeded the 30-day time period from the second EUO no-show, is unpersuasive and outmoded in light of the Appellate Division’s recent decision in Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013 [2d Dept 2023]), reversing a decision of the Appellate Term (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

This court has struggled with this issue in the past. Despite that the earlier Quality Health held that “the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance” (2020 NY Slip Op 51226[U], *1 [citation omitted]), this court found that a timely denial issued after a fourth missed EUO was sufficient to support defendant’s request for summary judgment (see NGM Acupuncture, P.C. v Nationwide Ins. Co., Civ Ct, Queens County, June 15, 2021, index No. 706015/2019). This court reasoned that to hold otherwise puts defendants at a disadvantage for offering plaintiffs additional opportunities to appear for an EUO, and disincentivizes diligent and thorough investigations. Even more so, it gave plaintiffs an advantage if they did appear at a third or fourth scheduled EUO.

Following the earlier Quality Health, the Appellate Term issued a decision in FJL Med. Servs., P.C. v Nationwide Ins. (77 Misc 3d 129[A], 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) that addressed this issue in a more comprehensive fashion. FJL essentially confirmed the finding of the Appellate Term in Quality Health. It reasoned that “an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities{**80 Misc 3d at 653} to appear and end its toll” (2022 NY Slip Op 51213[U], *2-3). Disregarding defendant’s arguments based upon the regulations and rooted in fairness principles, the court framed the issue as whether an insurer properly continued its toll period to pay or deny a claim, instead of whether a provider or insured appeared for a duly scheduled and/or rescheduled EUO.

Although this court continued to disagree with the premise expressed in Quality Health and expounded upon in FJL, in light of that later decision, this [*2]court capitulated and denied a defendant’s motion contemplating the same issue discussed here (see Access Care PT, P.C. v Palisades Ins. Co., 2023 NY Slip Op 32567[U] [Civ Ct, Queens County, Mar. 7, 2023]).

Having to contend with its prior decisions, this court is being asked to, again, consider this issue. However, now it has the Appellate Division’s decision in Quality Health which, arguably, endorses this court’s earlier opinion in NGM Acupuncture. In reversing the Appellate Term, the Appellate Division found that a denial for nonappearance issued after the last scheduled EUO, and in that case there were three, was timely and proper (see Quality Health Supply Corp., 216 AD3d at 1013). With this in mind, the court finds here that defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiff’s complaint by showing that its scheduling letters were timely and properly mailed, that the assignor failed to appear on each of the four scheduled dates, and that it ultimately issued a timely and proper denial following a failure to appear on the last scheduled date (see e.g. Quality Health Supply Corp., 216 AD3d 1013).

It is noteworthy that plaintiff did not deny receipt of the scheduling letters or that the assignor failed to appear on all four occasions. Actually, plaintiff highlighted that it responded to defendant’s scheduling letters by objecting to the location of the EUO but, also, expressing its assignor’s willingness to attend. Despite these responses, plaintiff seeks to penalize defendant for extending multiple opportunities to its assignor to appear. The contradictory nature of this argument and its effect of placing insurers in a problematic position is evident.

Most importantly, and what this court believes was previously overlooked, is that appearance for an EUO is a condition precedent to coverage (see generally Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020];Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35{**80 Misc 3d at 654} AD3d 720, 722 [2d Dept 2006]; Excel Imaging, P.C. v Infinity Select Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51796[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). By circumventing this principle, and virtually ignoring the EUO nonappearances, form prevailed over substance. The most recent Quality Health rectifies this imbalance and, also, promotes the mandate of the no-fault regulations prohibiting insurers from treating their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]; see also NGM Acupuncture, P.C. v Nationwide Ins. Co.). Ultimately, a plaintiff’s failure to appear for a duly scheduled EUO, barring any issues of timeliness, should be the predominate consideration in disputes such as the one before this court.

Plaintiff’s complaint is hereby dismissed.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Short & Billy, P.C. (Andrew S. Midgett, Skip Short, and Greenberg Traurig, New York, NY [James W. Perkins], of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 8, 2020. The order, insofar as appealed from, granted that branch of the defendant’s motion which was to disqualify the plaintiff’s counsel, The Law Office of Jason Tenenbaum, P.C.

Ordered that the order is affirmed insofar as appealed from, with costs.

In 2019, the plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages. The principal of nonparty The Law Office of Jason Tenenbaum, P.C., counsel for the plaintiff (hereinafter counsel for the plaintiff), had previously represented the defendant in hundreds of no-fault actions. The defendant moved, among other things, to disqualify counsel for the plaintiff from representing the plaintiff in this action based upon Tenenbaum’s prior representation of the defendant. In an order entered December 8, 2020, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was to disqualify counsel for the plaintiff. The plaintiff appeals. We affirm.

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” (Delaney v Roman, 175 AD3d 648, 649 [2019] [internal quotation marks omitted]; see Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]). Although a party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right, that right “will not supersede a clear showing that disqualification is warranted” (Matter of Marvin Q., 45 AD3d 852, 853 [2007]; see Scopin v Goolsby, 88 AD3d 782, 784 [2011]). “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and . . . opposing [counsel], (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Delaney v Roman, 175 AD3d at 649 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety (see Delaney v Roman, 175 AD3d at 649; Janczewski v Janczewski, 169 AD3d 773, 774 [2019]).

[*2] Here, the defendant established that counsel for the plaintiff had a prior attorney-client relationship with the defendant, that the issues involved in his prior representation of the defendant were substantially related to the issues involved in his firm’s current representation of the plaintiff, and that the interests of the plaintiff and the defendant were materially adverse (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.9; Delaney v Roman, 175 AD3d at 650).

Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to disqualify counsel for the plaintiff from continuing to represent the plaintiff in this action. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Short & Billy, P.C., New York, NY (Andrew S. Midgett and Christopher O’Donnell of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 1, 2020. The order denied that branch of the plaintiff’s motion which was to compel discovery without prejudice to renew.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages arising out of a 2016 motor vehicle accident. The plaintiff served discovery demands on the defendant. Thereafter, following the defendant’s responses, in 2020, the plaintiff moved, among other things, to compel the defendant to respond to the discovery demands. In an order entered December 1, 2020, the Supreme Court denied that branch of the plaintiff’s motion without prejudice to renew. The court determined that the motion papers were missing copies of the discovery demands served on the defendant and details about what discovery remained outstanding. The plaintiff appeals.

“ ’Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ ” (Matter of Metro-North Train Acc. of Feb. 3, 2015, 178 AD3d 929, 930 [2019], quoting Morales v Zherka, 140 AD3d 836, 836-837 [2016]; see Honghui Kuang v MetLife, 159 AD3d 878, 881 [2018]). CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The phrase ‘material and necessary’ should be ‘interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ” (Friel v Papa, 56 AD3d 607, 608 [2008], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised” (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518 [2001]; see McBride v City of New York, 208 AD3d 579, 580 [2022]).

[*2] Contrary to the plaintiff’s contention, the Supreme Court properly denied, without prejudice, that branch of his motion which was to compel discovery. The motion papers failed to include copies of the discovery requests served on the defendant or a list of the discovery that remained outstanding.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff’s motion without prejudice to renew. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. The Law Offices of “Shay” Shailesh Deshpande, LLC (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lance P. Evans, J.), entered February 26, 2020. The order granted plaintiff’s motion to vacate the dismissal of the action, which dismissal had been based on plaintiff’s failure to proceed at trial, and to restore the action to the trial calendar.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion to vacate the dismissal of the action, which dismissal was based on plaintiff’s failure to proceed at trial (see Uniform Rules for NY Civ Ct [22 NYCRR] § 208.14 [b] [2]), and to restore the action to the trial calendar.

“Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal ‘it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action’ ” (SZ Med., P.C. v Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Contrary to defendant’s argument on appeal, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had demonstrated a reasonable excuse for its default, as plaintiff’s witness was out of the country at the time of the trial. [*2]Contrary to defendant’s further argument, plaintiff demonstrated that it has a meritorious cause of action (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant’s remaining contentions lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

[*1]

Hinman, Howard & Kattell, LLP, Binghamton (Jeanette N. Warren of counsel), for appellant.

Mura Law Group, PLLC, Buffalo (Brendan S. Byrne of counsel), for respondent.

Pritzker, J. Appeal from an order of the Supreme Court (Oliver N. Blaise III, J.), entered June 16, 2022, in Broome County, which denied plaintiff’s motion for, among other things, a declaration that defendant is required to pay plaintiff’s medical expenses up to her policy limit.

In September 2020, the vehicle plaintiff was driving was rear-ended by a vehicle driven by Jane Mei and owned by Tak-Wing Tam, causing plaintiff multiple injuries and requiring her to undergo cervical fusion. Plaintiff is insured by defendant and had no-fault coverage up to $50,000 and additional personal injury protection (hereinafter APIP) coverage up to $50,000. Plaintiff thereafter settled with both Tam’s and Mei’s insurance carriers for $100,000 each, the maximum each policy permitted, and defendant paid plaintiff’s medical expenses up to the policy limit of her no-fault coverage. In addition, defendant paid plaintiff $7,292.85 of her APIP coverage, but refused to pay out any additional money under the APIP coverage and informed plaintiff that it had placed a lien on the $7,292.85 that had been paid out. On February 28, 2022, plaintiff commenced the instant action alleging that her settlement was not sufficient to compensate her for the injuries she sustained and, therefore, seeking a declaratory judgment that defendant was required to pay the remainder of her APIP coverage for her medical expenses and that defendant had no right to a lien on the $7,292.85 APIP already paid to plaintiff. Only two days later, plaintiff filed an order to show cause seeking the same relief sought in the complaint. Defendant subsequently filed an answer as well as opposition to the order to show cause arguing, among other things, that the evidence did not support the sought-after declaratory relief. After a brief oral argument, Supreme Court, apparently treating plaintiff’s order to show cause as a motion for summary judgment, denied plaintiff’s request for declaratory judgment in both respects, finding that she had failed to show that she was entitled to further APIP benefits and that defendant was not precluded from asserting a lien on the APIP benefits already paid to plaintiff, and dismissed the complaint. Plaintiff appeals.

Initially, we discern no error with Supreme Court treating plaintiff’s order to show cause, filed two days after commencement of the action, essentially as a motion for summary judgment seeking ultimate relief (see Matter of Estate of Jason v Herdman, 70 AD3d 1382, 1382 [4th Dept 2010]; Matter of Rine v Higgins, 244 AD2d 963, 964 [4th Dept 1997]). However, “[a] motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” (Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [4th Dept 2005] [internal quotation marks and citations omitted]; see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d 1353, 1354 [3d Dept 2018]; Peterson v State of New York, 130 AD2d 813, 814 [3d Dept 1987]). “Particularly in an [*2]action for declaratory judgment, all of the material facts and circumstances should be fully developed before the respective rights of the parties may be adjudicated” (Matter of Rine v Higgins, 244 AD2d at 964 [internal quotation marks, brackets and citation omitted]). Accordingly, rather than reaching the merits, Supreme Court should have determined that plaintiff was barred from seeking summary judgment at the time and denied the motion as premature (see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d at 1354-1355; Lindbergh v SHLO 54, LLC, 128 AD3d 642, 644 [2d Dept 2015]). That defendant answered and issue was joined prior to the return date of the order to show cause does not change this determination (see generally Matter of Rine v Higgins, 244 AD2d at 964). Indeed, a review of the record reveals that there are issues to be adjudicated in this action, particularly as to defendant’s right to subrogration, what portion of plaintiff’s settlement is for pain and suffering—and thus not subject to subrogation—and whether plaintiff has been made whole. Thus, while denial of plaintiff’s motion was warranted, the basis should have been that the motion was premature. Accordingly, the complaint must be reinstated and the matter remitted for further proceedings.

Garry, P.J., Aarons, Ceresia and Fisher, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as dismissed the complaint; complaint reinstated; and, as so modified, affirmed.

[*1]

Roman Kravchenko, Melville, for appellant.

Larkin Farrell LLC, New York (Anthony R. Troise of counsel), for respondent.

Order, Supreme Court, Bronx County (Marissa Soto, J.), entered January 27, 2023, which granted petitioner American Transit Insurance Company’s (American Transit) petition to vacate the award of a master arbitrator, dated August 11, 2022, affirming a lower arbitrator’s award, dated May 26, 2022, in favor of respondent Smart Choice Medical P.C. (Smart Choice) in the amount of $1,211.48, vacated the arbitration award, and denied Smart Choice’s request for attorney fees, unanimously affirmed, without costs.

“Where, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason” (Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-437 [1st Dept 2019]; see also Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999], lv denied 93 NY2d 809 [1999]).

“When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it constitutes a breach of a condition precedent vitiating coverage” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 442 [1st Dept 2018] [internal quotation marks omitted]). Like Hereford, American Transit established its entitlement to judgment as a matter of law by submitting the letters sent to the claimant notifying him about the date, time, and location of the initially scheduled IME, a second scheduled IME, a third scheduled IME, and an affidavit of mailing for these letters. American Transit also submitted affidavits from the medical professional assigned to conduct the scheduled IMEs, who stated that the claimant failed to appear at the date and time of his appointment. This principle is well-established law in this Court (see e.g. Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C., 181 AD3d 429, 429 [1st Dept 2020]; Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 175 AD3d 1131, 1131-1132 [1st Dept 2019]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]).

Generally, if a valid claim or portion of a claim for no-fault benefits is overdue, Insurance Law § 5106 (a) entitles “the claimant . . . to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations” (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 172 AD3d 598, 598 [1st Dept 2019]). However, because we find Smart Choice’s claim invalid as a matter of law, it is not entitled to such fees. Concur—Oing, J.P., Singh, Moulton, Scarpulla, Shulman, JJ.