Law Office of David O’Connor, P.C. (David O’Connor, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered October 15, 2015. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $2,670, awarded plaintiff no-fault statutory prejudment interest in the sum of only $1,082.24.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for a recalculation of the no-fault statutory prejudgment interest in accordance with this decision and order, and for the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on March 30, 2006. After a motion by plaintiff for summary judgment was denied by an order of the Civil Court entered June 8, 2007, plaintiff moved to compel defendant to appear for an examination before trial and provide responses to the interrogatories served by plaintiff. On December 18, 2007, the Civil Court denied plaintiff’s motion to compel but held that plaintiff could serve a second set of interrogatories within 45 days. On December 27, 2007, in accordance with the December 18, 2007 order, plaintiff served another demand for interrogatories upon defendant. Defendant did not serve a response to the demand for a second set of interrogatories, and plaintiff did not file a notice of trial until May 30, 2013. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However, the Civil Court held that plaintiff had [*2]unreasonably delayed the resolution of the case and that, as a result, no-fault statutory prejudgment interest would not accrue between the date the action had been commenced and the date the notice of trial had been filed. Plaintiff appeals from so much of the Civil Court’s judgment as failed to award plaintiff no-fault statutory prejudgment interest from the commencement of the action through January 27, 2008, as January 28, 2008 was the first day plaintiff could have made a motion based upon defendant’s failure to respond to the December 27, 2007 demand for interrogatories.

No-fault statutory prejudgment interest accrues upon overdue first-party no-fault benefits at the rate of two percent per month “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [a], [d]). While the court found that plaintiff was not entitled to the interest which had accrued between the commencement of the action on March 30, 2006 and the date plaintiff filed the notice of trial, May 30, 2013, plaintiff’s argument that the toll upon the accrual of interest should not begin until January 28, 2008, as plaintiff had not unreasonably delayed prosecution of the action prior to that date, is correct. Motions were made and discovery demands were served during the period between the commencement of the action and December 27, 2007, the date plaintiff served its second demand for interrogatories. Consequently, a motion by plaintiff to compel defendant to respond to the demand for interrogatories would have been premature prior to January 28, 2008 (see CPLR 2103 [a]; 3133 [a]; General Construction Law § 25-a). As a result, plaintiff is entitled to no-fault statutory prejudgment interest from the commencement of the action on March 30, 2006 through January 27, 2008.

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a recalculation of the interest pursuant to Insurance Law § 5106 (a) to include the no-fault statutory prejudgment interest which accrued from March 30, 2006 through January 27, 2008, and for the entry of an appropriate amended judgment thereafter.

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

Decided on January 24, 2018

Decided on January 19, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-950 K C

Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016, deemed from a judgment of that court entered April 7, 2016 (see CLPR 5501 [c]). The judgment, entered pursuant to the January 27, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,103.32.

ORDERED that the judgment is reversed, with $30 costs, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of two claims for services that plaintiff rendered from May 7, 2014 through July 16, 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.

As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered [*2]by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on January 18, 2018

Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Ilona Finkelshteyn, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered November 13, 2015, deemed from a judgment of that court entered February 16, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 13, 2015 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,322.51.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 13, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of five claims for services plaintiff rendered between December 2013 and April 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff sought to recover amounts which were in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed [*2]personal knowledge of the facts. In an order entered November 13, 2015, the Civil Court held that defendant was precluded from interposing such a defense because defendant had failed to timely deny plaintiff’s claims. As a result, the court granted plaintiff’s motion and denied defendant’s cross motion.

As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” As the services at issue were provided between December 2013 and April 2014, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, the order entered November 13, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on January 12, 2018

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered October 8, 2015. The order granted defendant’s cross motion for summary judgment dismissing the complaint and denied, as academic, plaintiff’s 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 an accident which occurred on April 19, 2010, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrine of res judicata, in that, by order entered April 3, 2013 on default, the Supreme Court, New York County, found that defendant is not obligated to honor or pay claims for reimbursement to the assignor and provider herein, among others, which had no rights “with respect to the April 20 [sic], 2010 alleged accident.” Plaintiff opposed defendant’s cross motion solely on the ground that the Supreme Court’s order had no collateral estoppel effect, as it had been entered on default. In reply papers, defendant proffered a subsequent order of the Supreme Court, dated April 2, 2015, which “vacated, resettled and corrected” the April 3, 2013 order to indicate that the date of the accident at issue was April 19, 2010. By order entered October 8, 2015, the Civil Court granted defendant’s cross motion based on res judicata and denied plaintiff’s motion as academic. Plaintiff argues, for the first time on appeal, that the April [*2]3, 2013 Supreme Court order has no preclusive effect because it applies to an accident on April 20, 2010, whereas the accident at issue in this case occurred on April 19, 2010. Plaintiff further argues that the “revised” April 2, 2015 order should not be considered as it was first submitted in reply papers.

The April 3, 2013 Supreme Court order did not have res judicata effect, as that order was vacated by the April 2, 2015 order. However, the April 2, 2015 order, which was attached to defendant’s reply papers, replaced the April 3, 2013 order and set forth the correct accident date of April 19, 2010, and a court “may, in general, take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]). Furthermore, contrary to plaintiff’s contention, the April 2, 2015 Supreme Court order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, we do not disturb the Civil Court’s order granting defendant’s cross motion (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for the respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate (1) an order of that court entered January 16, 2014 granting, upon the consent of the parties, plaintiff’s motion for summary judgment, and (2) a judgment of that court, entered February 20, 2014 pursuant to the January 16, 2014 order, awarding plaintiff the principal sum of $1,246.50, and, upon such vacatur, in effect, to deny plaintiff’s motion and for summary judgment dismissing the complaint.

ORDERED that the order entered May 14, 2015 is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant did not submit written opposition to the motion. By order entered January 16, 2014, the Civil Court granted the motion, stating that “[b]oth sides agreed [that plaintiff may enter judgment] and will not appeal the order.” A judgment in the principal sum of $1,246.50 was entered pursuant to that order on February 20, 2014. Thereafter, defendant moved to vacate the January 16, 2014 order and the judgment entered pursuant thereto, arguing that it had a reasonable excuse of law office failure for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, in effect, to deny plaintiff’s motion and for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant’s motion on the ground that defendant had failed to offer a reasonable excuse for its failure to submit written opposition to plaintiff’s motion for summary judgment.

As the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Healthworx Med., P.C. v Auto One Ins. Co., 55 Misc 3d 140[A], 2017 NY Slip Op 50559[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Hallock v State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143, 150 [1971]; CCU, LLC v Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing.

Accordingly, the order entered May 14, 2015 is affirmed.

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

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Larry Love, J.), dated June 5, 2013, deemed from a judgment of that court entered June 25, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $522.80.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. At the trial, the Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant’s notice of appeal from the decision dated June 5, 2013 is deemed a notice of appeal from the judgment entered June 25, 2013 (see CPLR 5512 [a]).

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of plaintiff’s claim form was based, should have been permitted to testify as to her opinion as to the lack of medical necessity of the supplies at issue, which testimony would be limited to the basis for the denial as set forth in the original peer review report (see Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 [*2]NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, which denied its petition to vacate an arbitration award in favor of respondent, awarding it unpaid no-fault benefits in the principal sum of $3,548.01, and confirmed the arbitration award.

Per Curiam.

Order and judgment (Erika M. Edwards, J.), entered November 30, 2016, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 policy limit of the subject insurance policy was exhausted before petitioner became obligated to pay respondent’s claim.

When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). 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 (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822-823 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65—1.1).

Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, [*2]1st Dept 2011]). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.