[*1]

Civil Court of the City of New York, Richmond County, February 7, 2018

APPEARANCES OF COUNSEL

Baker Sanders, L.L.C., Garden City, for plaintiff.

Law Offices of Daniel J. Tucker, Brooklyn, for defendant.

American Transit Insurance Company (hereinafter, defendant) filed this motion to stay the action pending a determination from the Workers’ Compensation Board (hereinafter, the Board) on whether Chiropractic Testing Services of New York (hereinafter, plaintiff) could be paid for treatment of Nelson De La Cruz (hereinafter, assignor) under workers’ compensation. Defendant claims that since assignor was injured in the course of employment, his claims should be covered by workers’ compensation and not personal injury protection and, therefore, the matter must be adjudicated by the Board before it reaches this court.

Plaintiff argues that in order for the court to stay the proceeding, defendant must establish the existence of an employer-employee relationship, citing Matter of Global Liberty Ins. Co. v Abdelhaq (36 AD3d 909 [2d Dept 2007]) where a stay was denied because the claimant failed to submit evidence that the cab driver’s base was his employer at the time of the accident. This case is distinguishable from Global Liberty, however, because assignor did not own his vehicle. Here, American United Transportation (hereinafter, the cab company) owned the vehicle and was named as the insured on the automobile insurance policy.

According to Workers’ Compensation Law § 2 (3), a livery base shall be deemed the “employer” of a driver if it must register with the Taxi & Limousine Commission and is [*2]not an “independent livery base” as defined in section 18-c.^[FN1] Even in cases where the driver owned the vehicle and paid for its fuel and{**59 Misc 3d at 252} maintenance, the Board has found an employer-employee relationship because the vehicle carried the dispatcher’s sign and telephone number, the dispatcher provided his radio, and the dispatcher exerted control over which calls he would pick up and how much he could charge (see Matter of Olistin v Wellington, 3 AD3d 618 [3d Dept 2004]).

Insurance Law § 5102 (b) (2) states that a no-fault claimant is entitled to reimbursement for economic loss less amounts “recovered or recoverable” from workers’ compensation benefits. The Court of Appeals has held that a no-fault insurer may attain “party in interest” status to a Board proceeding, upon the discretion of the Workers’ Compensation Law Judge (WCLJ), while the WCLJ makes the determination whether an employer-employee relationship existed (Liss v Trans Auto Sys., 68 NY2d 15 [1986]). The courts have consistently ruled that the legislature has vested “primary jurisdiction” in the Board over the issue of the availability of coverage under the Workers’ Compensation Law, and that plaintiffs have “no choice but to litigate this issue before the Board” (id. at 21).

The Court of Appeals has further held that, where the availability of workers’ compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions (O’Rourke v Long, 41 NY2d 219, 228 [1976]). Essentially, where a determination as to whether an accident arose out of a plaintiff’s employment is likely to require extensive fact-finding, the court should, “in the exercise of sound discretion,” defer to the Board (Jing Huo Lac v American Tr. Ins. Co., 19 Misc 3d 1146[A], 2008 NY Slip Op 51177[U], *3 [2008], citing Weber v State of New York, 104 Misc 2d 947 [Ct Cl 1980]).

Defendant need not prove that assignor was employed by the cab company at the time of the accident, but merely show “potential merit” to its claim so as to trigger a determination by the Board (A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).^[FN2]

In this case, we do not know the degree of control exerted by the cab company over assignor, but that should not preclude{**59 Misc 3d at 253} plaintiff’s duty to seek recovery under workers’ compensation. The facts that the cab company owned the vehicle involved in the accident and is named as the insured on its automobile policy show “potential merit” that the cab company is not an independent livery base and, therefore, assignor would be covered under workers’ compensation.

The motion to stay is granted, pending a determination by the Workers’ Compensation Board on the parties’ rights under the Workers’ Compensation Law.

In the event plaintiff fails to file proof with the court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the court shall grant [*3]summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

Footnotes

Footnote 1:The Board designates a livery base as an “independent livery base” if the: (a) base is not the owner/registrant of any vehicle it dispatches; (b) drivers use their own clothing; (c) drivers set their own schedules; (d) drivers select which dispatches they want to pick up; (e) drivers are free to contract with other bases; (f) base does not issue a W-2 or any federal withholding; (g) drivers pay for their own fuel and maintenance for the vehicle; (h) base does not issue fines or penalties except refusal to provide dispatches in response to driver misconduct; and (i) driver cannot be fired or discharged.

Footnote 2:Plaintiff produced assignor’s sworn statement that he was not working when the accident occurred and a sworn statement by his purported employer that assignor was not working, and was not en route to or from work at the time of the accident; defendant interposed only a claims adjuster’s assertion that defendant had “made the determination that the [assignor] was eligible for Workers’ Compensation” which in turn was based solely on an employer’s unsworn statement dated 18 months before the accident and a police accident report.

[*1]

Rubin, Fiorella & Friedman LLP, New York (Aaron F. Fishbein of counsel), for appellant.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment against certain defendants (defaulting defendants) on its first and/or second causes of action for a declaratory judgment, unanimously modified, on the law and the facts, to grant the motion as to defendants 21st Century Pharmacy a/k/a 21st Century Pharmacy Inc.; Advanced Orthopedics and Joint Preservation P.C.; Angelic Physical Therapy P.C.; BMJ Chiropractic, P.C.; Coney Island Medical Practice a/k/a Coney Island Medical Practice Plan, P.C.; Dana Woolfson LMT; Electrophysiologic Medical Diagnostics, P.C.; Excel Surgery Center, L.L.C.; Franklin Hospital; GC Chiropractic P.C.; Hamza Physical Therapy PLLC; LLJ Therapeutic Services, P.T. P.C.; Master Cheng Acupuncture P.C.; Metropolitan Medical & Surgical P.C.; Noel Blackman Physician, P.C.; North Shore LIJ Health System a/k/a North Shore LIJ Medical PC; Ortho-Med Equip Inc.; Patchogue Open MRI, P.C. d/b/a Southwest Radiology; Quality Health Family Medical Care a/k/a Quality Health Family Medical Care P.C.; Quality Medical & Surgical Supplies, L.L.C. a/k/a Quality Medical Surgical Supplies LLC; Ralph Innovative Medical, P.C.; RM Physical Therapy, P.C.; Total Psychiatric Medical Services, P.C.; Megastar Medical, P.C.; Michele Glispy, LAC; Layne Negrin, LMT; Ruby Galope, PT; and Patrick Masson, and to declare that such defendants have no right to no-fault benefits from plaintiff with respect to a September 19, 2014 motor vehicle accident, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiff established its entitlement to a default judgment against the defaulting defendants (see CPLR 3215 [f]) except for defendant Anio Pierriseme, for whom no affidavit of nonmilitary service appears in the record (see Avgush v De La Cruz, 30 Misc 3d 133[A], 2011 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:16). Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

[*1]

Law Offices of Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for appellant.

Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.

Order and judgment (one paper) of the Supreme Court, New York County (Debra A. James, J.), entered January 5, 2016, which granted plaintiff Unitrin Advantage Insurance Company’s (Unitrin) motion for summary judgment and declared that it had no duty to pay no-fault benefits to defendant Andrew J. Dowd, M.D., in connection with the subject April 16, 2013 collision, unanimously modified, on the law, to deny summary judgment and vacate the declaration as to the May 15, 2013, May 22, 2013, and May 31, 2013 dates of medical services, and otherwise affirmed, without costs.

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5 (b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.

Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).

The final claim, for date of medical services June 12, 2013, bill received on July 10, 2013, was timely and properly denied. Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

Decided on February 2, 2018

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

Decided on February 2, 2018

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

Decided on February 2, 2018

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

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 8, 2007. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $1,131.68. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgement interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,131.68 and, among other things, no-fault statutory prejudgment interest from January 8, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

No-fault statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accrue when the action is commenced (see 11 NYCRR 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [d]). While a significant amount of time elapsed between the commencement of this action and the trial, defendant did not adequately demonstrate to the Civil Court, and there was nothing in the record to indicate, the reason for the protracted delay or that it was plaintiff which had “unreasonably delay[ed]” the action (cf. Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, as there was no basis for the Civil Court to toll the accrual of no-fault statutory prejudgment interest, the judgment, insofar as appealed from, is affirmed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

67257/10

Counsel for Plaintiff: Leon Kucherovsky, Esq.

Counsel for Defendant: Peter C. Merani, PC

In this action for the payment of first-party benefits – no fault payments for medical treatments – defendant moves seeking an order pursuant to, inter alia, CPLR § 5019(a), modifying this Court’s Judgment, entered November 5, 2015. Saliently, defendant avers that the Judgment should be modified and the amount therein reduced to zero on grounds that defendant’s insured exhausted no-fault the limits of the relevant policy. Plaintiff opposes the instant motion asserting that defendant’s failure to raise the instant defense issue at the time this case was tried – despite being aware of the same – precludes application of the same.

For the reasons that follow hereinafter, defendant’s motion is denied.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint and exhibits appended thereto allege, in relevant part, the following: On September 2, 2009, LESSIE BENJAMIN (Benjamin) sought medical treatment from plaintiff for injuries sustained in a motor vehicle accident occurring on August 4, 2009. Lessie was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Lessie assigned to plaintiff. The treatments provided by defendant to Lessie totaled $2,272.66, were covered by defendants’s policy, were billed to defendant, but were nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

On May 15, 2015 after a trial, this Court (Franco, J.) issued a decision finding that based on the relevant fee schedule, of the sums sought by plaintiff, it was entitled to $588 plus costs and interest. The Court directed a judgment, and the same was entered on November 5, 2015. [*2]On January 14, 2016, plaintiff executed the judgment upon defendant’s assets.

Defendant’s motion seeking, inter alia, modification of the judgment pursuant to CPLR § 5019(a) – reducing the amount of the judgment to zero on grounds that Lessie has exhausted the relevant policy – is denied. Significantly, as will be discussed below, while defendant’s liability for any medical claims under the no-fault portion of its policy is generally limited to $50,000, here, it is alleged and unrebutted that defendant was aware that it had exhausted its policy prior to the entry of the relevant judgment but failed to raise the issue at trial.

It is well settled that [a]n insurer is not required to pay a claim where the policy limits have been exhausted” (Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]). Stated differently, where an insurer has paid the full monetary limits set forth in the relevant policy, its duties under the contract of insurance cease (id. at 534; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Presbyt. Hosp. in City of New York v Liberty Mut. Ins. Co., 216 AD2d 448, 448 [2d Dept 1995]; Presbyt. Hosp. in the City of New York v Gen. Acc. Ins. Co. of Am., 229 AD2d 479, 480 [2d Dept 1996]).

Indeed, in the context of actions seeking the payment of medical expenses under the no-fault portions of an insurance policy, the foregoing is no less true. Thus, even when a judgment is issued against an insurer requiring it to pay for medical expenses incurred by its insured under the no-fault provisions of its insurance policy, if the insurer has exhausted the amount for which it is liable under the policy, the judgment can generally not be enforced (St. Barnabas Hosp. v Country Wide Ins. Co., 79 AD3d 732, 733 [2d Dept 2010]; Hosp. for Joint Diseases v Hertz Corp., 22 AD3d 724, 725 [2d Dept 2005]; Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000] [“The arbitrators exceeded their authority in directing the payment of the $2,250 at issue, as the award was in excess of the $50,000 limit of the subject insurance policy. When an insurer has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (internal citation and quotation marks omitted).]; Presbyt. Hosp. in the City of New York, 229 AD2d at 480 [2d Dept 1996]; Presbyt. Hosp. in City of New York, 216 AD2d at 448; Allstate Prop. and Cas. Ins. Co. v Northeast Anesthesia and Pain Mgt., 51 Misc 3d 149(A), *1 [App Term 2016]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137(A), *1 [App Term 2015]; Allstate Ins. Co. v Demoura, 30 Misc 3d 145(A), *1 [App Term 2011]). Thus, when an insured establishes that it has exhausted the no-fault limits under its policy because it paid all amounts allowed under the policy to medical providers, it is generally not liable for any other amounts (Hosp. for Joint Diseases at 725 [“The evidence submitted in support of the motion established, among other things, that the defendants’ payments to other health providers and the defendants’ payment of the plaintiff’s initial claim totaled $23,744.21, and that the defendants forwarded to the plaintiff the remaining amount they were obligated to pay under the policy, namely, $26,255.79, which resulted in the $50,000 policy limit being exhausted. The Supreme Court granted the defendants’ motion, finding that the defendants’ payment satisfied the judgment and exhausted the policy limit, and that the information subpoena was rendered academic.”]; Countrywide Ins. Co. at 245;Harmonic Physical Therapy, P.C. at *1).

The foregoing defense, however, may be waived. With regard to when an insured is required to interpose the defense of policy exhaustion to prevent the payment of outstanding claims, the case law appears to be clear. Indeed, the appellate authority on this issue as well as trial court precedent establishes that defendant’s failure to raise the issue – when known – constitutes waiver. In Mount Sinai Hosp. v Dust Tr., Inc. (104 AD3d 823, 825 [2d Dept 2013]), defendant sought to modify a judgment issued against it after plaintiff was granted summary judgment on the issue of whether defendant – an insurer – owed plaintiff – a medical provider – money under a no-fault policy for medical services rendered to defendant’s insured (id. at 824). The court held that insofar as defendant failed to assert that it had exhausted the no-fault limits of its policy in opposition to plaintiff’s motion for summary judgment, only raising it after it sought to modify the judgment, such modification was barred (id. at 825 [“The issue of partial exhaustion of the defendant’s coverage was raised for the first time after the judgment was [*3]entered, even though the plaintiff had previously moved for summary judgment on the complaint, seeking a certain amount of benefits . . . The failure to present such reasonable justification by itself requires denial of the defendant’s motion.”]). Clearly, then, the holding in Mount Sinai Hosp., which deems the defense of policy exhaustion waived when known and not raised in relation to summary judgment also requires waiver when the defense is known prior to trial and not raised. While the appellate courts in the First Department have yet to address this issue, one case in this very Court has decided the issue – on identical facts – in a plaintiff’s favor.

In Big Apple Ortho Medical Supply, Inc. V Allstate Insurance Company (NYLJ 1202756440119, *1 [Civil Ct, Bronx County 2016]), the court declined to modify the judgment issued against an insurer for the payment of no-fault benefits on grounds that the defense of policy exhaustion was raised for the first time in a post judgment motion (id. at *2-3). Significantly, the court there concluded that defendant could have raised the defense at trial but failed to do so (id.). Other trial courts have also declined to modify a judgment requiring the payment of no-fault benefits when the defense is raised after judgment is rendered but could have been raised prior thereto (Ortho Passive Motion Inc. v Allstate Ins. Co. 55 Misc 3d 794, 797 [NY Dist Ct 2017]). In Ortho Passive Motion Inc., the court denied defendant’s post judgment motion to modify and reduce the same to zero on grounds that the exhaustion of the policy’s no-fault limits precluded payment on the judgment (id. at 795). The Court denied the application, concluding that defendant was aware of the fact that it could not satisfy the judgment at the time the case was tried and in failing to raise it, could not be accorded the relief sought (id. at 895).

The dearth of dispositive appellate authority in this department is, of course clear, and any argument to the contrary is unavailing. Indeed, in neither Harmonic Physical Therapy, P.C., (47 Misc 3d 137[A]) nor Demoura (30 Misc 3d 145[A]), did the Appellate Term, First Department have occasion to address the issue at bar – whether failing to raise the defense of policy exhaustion prior to judgment, when the same was known at the time of trial – bars the applicability of the defense. At best, the court in Demoura held that “[a] defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30-day period” (id. at 145). This of course does not avail a defendant since it is one thing to fail to raise a defense prior to the initiation of an action, without having such failure constitute waiver, and quite another to raise the same after a judgment in an action has been issued. Especially when the defendant had prior knowledge that its policy had been exhausted.

Here, in support of its motion defendant submits the policy issued to Lessie, which indicates at Page 12, under the section titled “Limits of Liability” that

[t]he limit of our liability for Medical Expense Benefits as stated on the Policy Declarations, is the maximum we will pay per any one insured person for any motor vehicle accident.

Notably, the policy declarations submitted by defendant fail to indicate the limits of any no-fault benefits under the policy. Defendant also submits a host of documents – checks – indicating that it paid in excess of $50,000 for medical services on behalf of Lessie, its insured. According to the checks, all payments were made prior to 2011.

Based on the foregoing, defendant’s motion must be denied. First, defendant fails to establish that the policy at issue in fact limits no-fault benefits to $50,000. As noted above, the policy declaration documents submitted are bereft of any indication that the policy had a no-fault benefit, let alone the limits thereof.^[FN2]

Notwithstanding the foregoing, defendant’s motion must be denied for a more substantive reason. On this record, the assertion that when this case was tried in 2015, defendant was aware [*4]that its policy had been exhausted and nevertheless failed to raise such defense remains unrebutted. This is fatal.

As discussed above, when a defendant knows it has exhausted its policy and fails to raise it concomitantly with notice of the same, any motion seeking to modify a judgment based on that defense must be denied. (Mount Sinai Hosp. at 825;Ortho Passive Motion Inc. at 895; Big Apple Ortho Medical Supply, Inc. at *2-3). Here, plaintiff asserts that defendant had exhausted its policy prior to the time the case was tried such that defendant should have raised the same during the trial. This assertion remains unrebutted and it is, in fact, borne out by defendant’s own evidence – the checks purporting all payments made on behalf of Lessie – which indicate no payments beyond 2011 – four years prior to trial. Thus, since defendant’s position is that the checks submitted establish exhaustion of the policy, it is bound by the dates therein, which establish exhaustion prior to trial.

Accordingly, the record establishes that defendant knew and could have raised the foregoing defense, nevertheless failed to raise its exhaustion defense at trial or prior thereto; raising it for the first time after judgment was entered and with the instant motion. Defendant is, thus, barred from availing itself of this defense and its motion must be denied (Mount Sinai Hosp. at 825;Ortho Passive Motion Inc. at 895; Big Apple Ortho Medical Supply, Inc. at *2-3).

Defendant’s reliance on Hosp. for Joint Diseases is misplaced and unavailing. While it is true that in that case defendant was allowed to avail itself of the exhaustion defense after a judgment had been entered, the court only so held insofar as “the defendants were not previously afforded a full and fair opportunity to contest that issue” prior to the entry of judgment (id. at 725-726). Here, of course, defendant was aware of its exhaustion defense at the time of trial, could have raised and litigated the same, but did not. Nor does St. Barnabas Hosp., avail defendant. Significantly, while the court in that case did allow the defendant to modify the judgment on grounds of policy exhaustion, it did so by rejecting the plaintiff’s contention on appeal – that defendant was collaterally estopped from raising the defense because such issue was not raised in connection opposition to plaintiff’s motion for summary judgment (id. at 733). Indeed the Court noted that

[c]ontrary to the plaintiff’s contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff’s claim, based upon the contention that the policy limits have been partially exhausted (id. at 733.) That court’s holding is, thus, limited to its facts and indeed appropriate since the doctrine of collateral estoppel, a narrower species of the doctrine of res judicata, prevents a party from re-litigating an issue when the issue was previously litigated and decided against the party or his/her privies (Ryan v New York Telephone Company, 62 NY2d 494, 500 [1984]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; David v Biondo, 92 NY2d 318, 322 [1998]; Gramartan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]; Lumbermens Mutual Casualty Company v 606 Restaurant, Inc., 31 AD3d 334, 334 [1st Dept 2006]; Zimmerman v Tower Insurance Company of New York, 13 AD3d 137, 139 [1st Dept 2004]; Mulverhill v State of New York, 257 AD2d 735, 737-738 [3d Dept 1999]; Tamily v General Contracting Corporation, 210 AD2d 564, 567 [3d Dept 1994]). In order to invoke the preclusive effects of collateral estoppel it must be demonstrated that the issue being raised is identical to an issue previously litigated and decided, that the issue is decisive in the present action, was also decisive and resolved in the prior action, that the party against whom the doctrine is being asserted had a full and fair opportunity to contest and litigate the issue in the prior action, or that his privies had such an opportunity (Buechel at 303-304; David at 322; Ryan at 500; Gramartan Home Investors Corp. at 485; Lumbermens Mutual Casualty Company at 334; Zimmerman at 139; Mulverhill at 737-738; Tamily at 567; Browing Avenue Realty Corp. v Rubin, 207 AD2d 263, 266 [1st Dept 1994]; [*5]Color by Pergament, Inc. v O’Henry’s Film Works, Inc., 278 AD2d 92, 93 [1st Dept 2000]; Comi v Breslin & Breslin, 257 AD2d 754, 757 [3d Dept 1999]).

Thus, St. Barnabas Hosp., does not stand for the proposition – as urged – that a defendant cannot waive and can, therefore, raise the defense of exhaustion at any time. Rather, in that case, the court merely held that collateral estoppel did not preclude defendant from raising the issue after judgment was entered because the same had not been raised and litigated on plaintiff’s motion for summary judgment; the foregoing being essential elements of collateral estoppel. It is hereby

ORDERED that all stays be hereby lifted. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty days (30) hereof.

This constitutes this Court’s decision and Order.

Dated: February 1, 2018

Hon. FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: Defendant’s failure is not fatal since the Insurance Law mandates that all automobile insurance polices in this state provide no-fault coverage for medical expenses incurred by an occupant in a motor vehicle accident in the sum of $50,000 (see, Insurance Law § 5102[a][1], § 5103[a][1]).

[*1]

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy Ford Paglia of counsel), for appellant.

Basch & Keegan, Kingston (Derek J. Spada of counsel), for respondent.

Devine, J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered November 16, 2016 in Ulster County, which denied defendant’s motion for summary judgment dismissing the complaint.

After he was injured in a motor vehicle accident, plaintiff commenced this action to recover no-fault benefits for lost wages that he allegedly would have received from a new job that he had been offered but not yet started. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint. This Court reversed, granted the motion and dismissed the complaint (152 AD3d 1145 [2017]). The Court of Appeals reversed, finding “[t]riable issues of fact . . . as to plaintiff’s claim for lost wages,” and remitted the matter so that this Court could address any issue “raised but not determined” on the initial appeal (30 NY3d 1044, 1045 [2017]).

The remaining issue is whether defendant was provided with proper verification of plaintiff’s claim for lost wages. “[A]n insurer must pay or deny only a verified claim” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; see 11 NYCRR 65-3.8 [a] [1]), which ordinarily requires “its receipt of verification of all of the relevant information requested” (11 NYCRR 65-3.8 [b] [3]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d at 299). As is relevant here, the insurer must “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed [*2]form” (11 NYCRR 65-3.5 [f]; see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]). The regulations therefore ensure that the insurer is provided with the necessary information to verify a claim but do not, in most instances, require that the information be provided on a particular form (see 11 NYCRR 65-3.5 [f]).

Defendant complains, and the record indicates, that it did not receive a completed NF-6 form (employer’s wage verification report) from VW Parts, Inc., the intended employer. The principal of VW Parts testified, however, that he did not believe that he ever received an NF-6 form to complete. Counsel for plaintiff confirmed as much in a letter responding to defendant’s demand for the completed form, requesting a copy that he could provide to VW Parts. In any event, counsel for plaintiff had already provided defendant with plaintiff’s employment application to VW Parts and a signed employment offer providing details of the proffered work. To the extent that those documents did not provide all of the information contained on a completed NF-6 form, defendant further connected with the principal of VW Parts “for an interview and verification of employment” that could have been used to obtain the remainder. Thus, inasmuch as triable questions of fact exist as to whether plaintiff’s claim was properly verified, defendant is not entitled to summary judgment dismissing the complaint on that basis.

Egan Jr., Clark and Mulvey, JJ., concur; McCarthy, J.P., not taking part. Ordered that the order is affirmed, without costs.

Freiberg, Peck & Kang, LLP (Yilo J. Kang. Esq.), for appellant. Murray Hill Legal Services, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated February 24, 2015. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action in 2006 to recover assigned first-party no-fault benefits. Defendant defaulted in answering, and, more than seven years later, plaintiff moved for the entry of a default judgment. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court, in effect, denied the motion and cross motion but permitted defendant to submit an answer and directed plaintiff to file a notice of trial. Defendant appeals from so much of the order as denied its cross motion to dismiss the complaint.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and “demonstrate that the complaint is meritorious, failing which the court, . . . on motion, must dismiss the complaint as abandoned” (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Giglio v NTIMP, Inc., 86 AD3d 301 [2011]).

Here, plaintiff failed to establish a reasonable excuse for the delay (see Mattera v Capric, 54 AD3d 827 [2008]). Plaintiff’s counsel asserted only that, in 2006, there was a possible settlement entered into between the parties. This lone assertion, along with a 2006 letter referencing a purported settlement, is insufficient to establish a history of settlement discussions which could possibly excuse the seven-year delay (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783 [2008]). Moreover, plaintiff submitted “neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim” (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The complaint, attached to the motion, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (see Solano v Castro, 72 AD3d 932 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.