Gabriel & Shapiro, LLC (Jason Moroff, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated June 18, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that all of plaintiff’s claims had been timely denied on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule. Moreover, the claims for dates of service July 12, 2013 through September 30, 2013 were denied on the additional ground that the services were not medically necessary, based upon an independent medical examination of plaintiff’s assignor by Dr. LoCascio, defendant’s licensed acupuncturist, which had been performed on June 24, 2013.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

With respect to the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims for dates of service July 12, 2013 through September 30, 2013 on the ground that the services were not medically necessary, while defendant, in support of its motion, submitted Dr. LoCascio’s sworn report, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for further treatment, plaintiff, in opposition to the motion, submitted an affirmation by Dr. Vatelman, the licensed acupuncturist who had treated the assignor, which meaningfully referred to and sufficiently rebutted the conclusions set forth in Dr. LoCascio’s report. We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001). We further note that while Dr. Vatelman, as an acupuncturist, was ineligible to submit an affirmation under CPLR 2106 (a), defendant waived any objection on this basis, as it did not raise this issue either in the District Court or on appeal (see Scudera v Mahbubur, 299 AD2d 535 [2002]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Judgment, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about April 7, 2016, in respondent’s favor, unanimously affirmed, with costs.

Petitioner failed to establish any of the grounds for vacating an arbitration award (CPLR 7511 [b], [c]; see generally Azrielant v Azrielant, 301 AD2d 269, 275 [1st Dept 2002], lv denied 99 NY2d 509 [2003]).

Pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12), “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319 [2005]). Assuming without deciding that an insurer’s defense of fraudulent incorporation cannot be precluded (see AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92, 95 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]), we conclude that the master arbitrator properly confirmed the award of the arbitrator, who reviewed petitioner’s submissions relating to the plea of guilty to no-fault insurance fraud by a man married to the owner of respondent, found that respondent was not mentioned once in the “hundreds of pages” submitted, and rejected petitioner’s attempt to hold the owner “responsible by association.” Petitioner’s reliance on a subsequent arbitration (in 2014) is also misplaced; among other things, the later arbitration appears to have relied on documentation that was not submitted to the arbitrator in this case.

Contrary to petitioner’s contention, there was no default in this case. In any event, any delay in opposing the petition to vacate the arbitration award was short and quickly corrected, and the explanation given for it—law office failure—was detailed and specific, and, in view of the strong public policy favoring resolution of litigation on the merits, constituted “good cause” for the delay (see Lamar v City of New York, 68 AD3d 449 [1st Dept 2009]).

Respondent is entitled to attorneys’ fees for this appeal (11 NYCRR 65-4.10 [j] [4]), calculated, in accordance with 11 NYCRR 65-4.6 (b), as 20% of the no-fault benefits awarded. Concur—Acosta, P.J., Renwick, Mazzarelli, Andrias and Manzanet-Daniels, JJ.

Law Offices of James F. Sullivan, P.C. (Giovanna Tuttolomondo, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 12, 2015. The order denied defendant’s motion to vacate a default judgment of the same court entered May 27, 2014 upon defendant’s failure to appear or answer the complaint.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits as a result of an accident which had occurred on June 20, 2010. Defendant did not answer the complaint. Thereafter, defendant commenced a declaratory judgment action in the Supreme Court, New York County, which culminated in an order declaring that Allstate Insurance Company was not obligated to provide coverage for claims by plaintiff, among other providers, relating to an accident which had occurred on June 21, 2010. Shortly after defendant served the Supreme Court order on plaintiff and its assignor, among others, plaintiff applied to the Civil Court for leave to enter a default judgment, which the court granted. The default judgment was entered on May 27, 2014.

Defendant moved by order to show cause in the Civil Court to vacate the default judgment, claiming, as an excuse for the default, that it had no record of receiving the summons and complaint, but if defendant had been served, then defendant’s failure to answer the complaint was the result of clerical error and office failure. Defendant asserted, as a potentially meritorious defense, that defendant possessed a founded belief that the collision, which defendant’s claim representative alleged in her affidavit occurred on June 21, 2010, was a staged incident. Plaintiff opposed the motion. Subsequently, defendant presented the Civil Court with the Supreme Court order in the declaratory judgment action. By order entered May 12, 2015, the Civil Court took judicial notice of the Supreme Court order but denied defendant’s motion, finding, among other things, that the Supreme Court order had not been properly served.

In support of its motion to vacate the default judgment, defendant was required to [*2]demonstrate both a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). While plaintiff’s complaint in the Civil Court asserted that the accident at issue had occurred on June 20, 2010, defendant’s proffered evidence of a staged accident referred to a June 21, 2010 collision. Consequently, defendant failed to demonstrate that the alleged injuries did not arise out of the June 20, 2010 insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Similarly, the Supreme Court declared that defendant is not obligated to reimburse plaintiff for claims “relating to the June 21, 2010 accident.” Thus, we cannot find that the order in the declaratory judgment action, which relieves defendant of liability for claims relating to a June 21, 2010 accident, is a conclusive determination barring plaintiff’s recovery in the Civil Court for injuries sustained by its assignor in a June 20, 2010 accident. In the absence of an explanation of the discrepancy in the dates of the accident, defendant failed to demonstrate the existence of a potentially meritorious defense to the action. In view of the foregoing, it is unnecessary to consider whether defendant proffered a reasonable excuse for its default.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

[*1]

Law Offices of Melissa Betancourt, P.C., Brooklyn, NY (Frank D’Esposito of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Stuart Flamen of counsel), for respondent.

Appeal from an order of the Supreme Court, Kings County (Jules L. Spodek, J.), dated June 2, 2015. The order, insofar as appealed from, directed that the administrator of the defendant Estate of Ronald L.L. Collins appear for a deposition.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal from so much of the order as directed that the administrator of the defendant Estate of Ronald L.L. Collins appear for a deposition, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, with costs.

The plaintiff insurance company commenced this action against, among others, the defendant Estate of Ronald L.L. Collins, seeking a judgment declaring, inter alia, that the plaintiff has no obligation to pay no-fault claims for medical services purportedly rendered by Collins. In an order dated June 2, 2015, the Supreme Court, inter alia, directed that the administrator of Collins’s estate (hereinafter the administrator) appear for a deposition. The defendants appeal from that portion of the order.

CPLR 3101 (a) (1) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The terms “material and necessary” in this statute “must ‘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’ ” (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see D’Alessandro v Nassau Health Care Corp., 137 AD3d 1195, 1196 [2016]). “At the same time, a party is ‘not entitled to unlimited, uncontrolled, unfettered disclosure’ ” (D’Alessandro v Nassau Health Care Corp., 137 AD3d at 1196, quoting Geffner v Mercy Med. Ctr., 83 AD3d 998, 998 [2011]). “ ’It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims’ ” (D’Alessandro v Nassau Health Care Corp., 137 AD3d at 1196, quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, [*2]421 [1989]). Here, the plaintiff made no showing that conducting the deposition of the administrator will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (see Black v Budget Rent A Car Corp., 224 AD2d 350 [1996]; Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d at 421).

The parties’ remaining contentions are without merit.

Accordingly, the Supreme Court improperly directed that the administrator appear for a deposition. Rivera, J.P., Hall, LaSalle and Connolly, JJ., concur.

[*1]

Law Office of Gregory A. Goodman, P.C., Hauppauge (Gregory A. Goodman of counsel), for appellant.

Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Shlomo Hagler, J.), entered January 6, 2017, which denied defendant Star of N.Y. Chiropractic Diagnostic, P.C.’s (Star) motion for attorneys fees against plaintiff, unanimously affirmed, with costs.

“It is well settled in New York that a prevailing party may not recover attorneys’ fees from the losing party except where authorized by statute, agreement or court rule” (U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597 [2004]; see also Gotham Partners, L.P. v High Riv. Ltd. Partnership, 76 AD3d 203, 205 [1st Dept 2010], lv denied 17 NY3d 713 [2011]). While an insured party may recover attorneys’ fees where it successfully defends against its insurer’s action seeking a declaratory judgment that it has no duty to defend or indemnify its insured (see Underwriters Ins. Co., 3 NY3d at 597; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21 [1979]), “[t]he reasoning behind [the award of such attorneys’ fees] is that an insurer’s duty to defend an insured extends to the defense of any action arising out of the occurrence, including a defense against an insurer’s declaratory judgment action” (Underwriters Ins. Co., 3 NY3d at 597-598). Here, plaintiff owes defendant Star no duty to defend, as Star is merely seeking reimbursement for chiropractic services rendered to the claimant in this no-fault action. While Star was assigned the claimant’s rights for such reimbursement, the claimant was merely the injured party in the taxi at the time of the accident, and plaintiff owed no duty to defend the claimant. Star, as assignee of the claimant’s rights, could acquire no greater rights than its assignor (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011]), and did not acquire any right to a defense from plaintiff. Thus, the court properly held that Star was not entitled to attorneys’ fees in this case.

[*2] We have examined Star’s remaining arguments, including its public policy argument, and find them to be unavailing. Concur—Sweeny, J.P., Renwick, Andrias, Feinman and Gesmer, JJ.

Decided on May 12, 2017

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

Decided on May 12, 2017

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rubin, Fiorella & Friedman, LLP (Conrad Horowitz, Esq.) for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 23, 2015. The order, insofar as appealed from as limited by the brief, sua sponte, awarded defense counsel “$250 in fees.”

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor, who allegedly had sustained injuries in a motor vehicle accident which had occurred on June 26, 2010. Defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrines of res judicata and collateral estoppel by virtue of an order it had obtained against this provider, among others, in a Supreme Court declaratory judgment action involving the same motor vehicle accident. Plaintiff opposed defendant’s motion and cross-moved for various types of relief. The Civil Court, in an order entered October 23, 2015, granted defendant’s motion for summary judgment dismissing the complaint, denied plaintiff’s cross motion and, sua sponte, awarded defense counsel “$250 in fees.” Plaintiff appeals, as limited by its brief, from so much of the order as awarded defense counsel “$250 in fees.”

We assume that the Civil Court, in making its award, was relying upon Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (a), which permits a court, on its own initiative, to award “to any party or attorney . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct.”^[FN1] While a court may make such award on its own initiative (after affording the parties a reasonable opportunity to be heard and setting forth its findings in a written decision), we note that no appeal as of right lies from the portion of an order which is decided sua sponte (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]), and we decline to grant leave to appeal. We further note that plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that such motion was denied (Sholes v Meagher, 100 NY2d at 335; see CCA 1702 [a] [3]).

Accordingly, the appeal is dismissed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: May 12, 2017

Footnotes

Footnote 1: It is unlikely that the Civil Court intended to award motion costs, since the court is limited to awarding an amount not in excess of $50 (see CCA 1906 [a]) and since such an award is generally made to a party in the litigation and not to counsel.

HUCV 371-16
James F. Matthews, J.

Upon the following papers numbered 1 to 27 read on this motion by plaintiff for an order to quash subpoena and defendant’s motion to strike Notice of Trial by Notice of Motion / Order to Show Cause and supporting papers 1-10, 11-16; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 17-22 ; Replying Affidavits and supporting papers 23-27 ; Filed papers; Other; it is,

ORDERED that the motion by plaintiff brought by order to show cause, seeking to quash the subpoena issued to its non-party bank, J.P. Morgan Chase Bank, by defendant’s counsel, and the notice of motion brought by defendant, seeking to strike the plaintiff’s Notice of Trial and Certificate of Readiness, and to remove the matter from the trial calendar, are consolidated; and it is further

ORDERED that the motion by plaintiff seeking to quash the subpoena issued by defendant’s counsel to plaintiff’s non-party bank, J.P. Morgan Chase Bank, is denied; and it is further

ORDERED that the stay issued by the Court, is hereby vacated, and the subpoena duces tecum issued by defendant to J.P. Morgan Chase Bank is valid and enforceable by the issuing party; and it is further

ORDERED that the motion by defendant to strike the Notice of Trial and Certificate of Readiness dated December 22, 2016, filed by plaintiff pursuant to 22 NYCRR §212.17(a), is granted, and the action shall be stricken from the trial calendar pursuant to 22 NYCRR §212.17(c).^[FN1] The Clerk of the Court is directed to strike the action from the trial calendar.

This is an action by plaintiff health care provider seeking recovery of payment for [*2]medical services rendered on 10/04/12- 02/21/13 in the total sum of $7,286.21, as the result of a car accident of plaintiff’s assignor, under New York’s No-Fault Law.

Defendant caused a subpoena duces tecum to be served, by fax, on plaintiff’s non-party bank, J.P. Morgan Chase Bank, of which receipt and acceptance was acknowledged in a letter attached as an exhibit by defendant. It required production of bank records, including copies of banking statements, canceled checks, deposit slips, signature cards, corporate resolutions, account authorizations, bank account registers, ledgers and electronic transfers for plaintiff for the years 2012 through the present, for all accounts titled in the name of Harden Street Medical, PC, including Account number 978760122.

Plaintiff moves by order to show cause for a protective order pursuant to CPLR 2304, seeking to quash the subpoena duces tecum. Plaintiff objects to the service by fax on the non-party bank, J.P. Morgan Chase Bank, stating it was improperly served. Plaintiff complains the subpoena is being improperly used as a “fishing expedition” for discovery or for the existence of evidence. Plaintiff also protests the subpoena fails to set forth factual predicates for the relief sought, and the material requested is overbroad and an unsupportable demand for discovery.In opposition to plaintiff’s motion to quash, defendant submits an affidavit from an employee and Manager of the Medical Fraud Division, who was previously a Fraud Investigator for defendant, as well as an employee in claims and the Special Investigative Units. He submits the factual findings of his investigative report, which include certain patterns that are notoriously indicative of fraudulent situations involving no-fault claims, including inter-relationships with different named medical entities and management companies, and named individuals, based at the same address. Defendant asserts its demands are properly within a subpoena duces tecum, and are material and necessary to search for Mallella fraud claims (see State Farm v Mallella, 4 NY3d 313 [2005]).^[FN2]

Defendant also moves by motion to strike the Notice of Trial and Certificate of Readiness dated 12/22/16, which was filed by plaintiff pursuant to 22 NYCRR §212.17.^[FN3] Defendant asserts that plaintiff has failed to comply with the discovery demands of defendant, and yet filed a Certificate of Readiness and Notice of Trial with the Court.

The Court notes that plaintiff has not denied defendant’s assertion that plaintiff has not complied with the discovery demands of defendant, including outstanding interrogatories, notice for discovery and inspection pursuant to CPLR 3101, and notice to take deposition upon oral examination. Indeed, counsel for defendant submits his affirmation in support of the motion to strike, stating that “there is pending discovery in the within matter, this matter is not ready to be [*3]placed on the trial calendar, and the Court has been incorrectly informed by plaintiff’s counsel that discovery has been completed…”

Here, the Court finds that defendant has complied with the notice requirement of CPLR 3101[a][4] in stating on the face of the subpoena “the circumstances or reasons such disclosure is sought or required” (see Matter of Kapon v Koch, 23 NY3d 32 [2014]; Jamaica Wellness Med. P.C. v USAA Cas. Ins. Co., 49 Misc 3d 926 [Civ Ct of City of New York, Kings Cty 2015]).

The Court further determines that defendant has demonstrated its discovery demands are both material and necessary (see CPLR 3101[a]; State Farm Mut. Auto. Ins. Co. v Mallela, supra), and “is in keeping with this state’s policy of liberal discovery” (see Matter of Kapon v Koch, supra at 39). There is no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure materials from any other source (Id. at 38). The use of the words “material and necessary” must be interpreted to require disclosure “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Id. at 38, citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]).

Disclosure from a non-party “requires no more than a showing that the requested information is relevant to the prosecution or defense of the action” (see Bianchi v Galster Management Corp., 131 AD3d 558 [2nd Dept 2015]). Therefore, plaintiff’s objections to the disclosure demands in the subpoena lack sufficient merit (see also One Beacon Ins. Group, LLC. v Midland Med. Care, P.C., 54 AD3d 738 [2nd Dept 2008]; Q-B Jewish Med.Rehabilitation, P.C. v Allstate Ins. Co., 33 Misc 3d 64 [App. Term, 2nd Dept 2011]).

The Court also determines that plaintiff’s motion to quash the subpoena has failed in its burden to demonstrate that the discovery sought is “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (Id. at 34; CPLR 3103[a]). The burden is on the moving party to establish the need for a protective order (see Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 453 [2nd Dept 1994]; CPLR 3103[a]). Also, a motion for a protective order is addressed to the sound discretion of the Court (see Jamaica Wellness Med. P.C. v USAA Cas. Ins. Co., supra).

In the view of the Court, defendant is entitled to financial records to ascertain whether the health care provider is actually ineligible to recover assigned no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, supra; All Boro Psychological Services, P.C. v Auto One Ins. Co., 35 Misc 3d 136[A][App Term, 2nd, 11th & 13th Jud Dists, 2012]), including corporate tax returns and tax records (see 62-41 Woodhaven Med. P.C. v Adirondack Ins. Exch., 30 Misc 3d 131[A][App Term, 2nd, 11th & 13th Jud Dists 2011], and bank records to show whether disproportionate shares of a professional corporation’s revenue is evidence of ownership and/or control by an unlicensed individual (see One Beacon Ins. Group, LLC. v Midland Med. Care, P.C., supra).

Moreover, plaintiff’s argument that defendant improperly served the subpoena duces tecum, by fax, on plaintiff’s non-party bank, is unavailing. The bank accepted service of the subpoena without objection.

Therefore, plaintiff’s motion to quash the subpoena duces tecum served by defendant on plaintiff’s non-party bank, J.P. Morgan Chase Bank, is denied. The stay by the Court is lifted and the subpoena duces tecum remains valid and enforceable by defendant.

The motion by defendant to strike the Notice of Trial and Certificate of Readiness dated [*4]December 22, 2016, filed by plaintiff, is granted, to the extent that the action shall be stricken from the calendar pursuant to 22 NYCRR §212.17(c). The Clerk of the Court is directed to strike the action from the calendar.

The foregoing constitutes the decision and order of this Court. Submit judgment.

Dated: May 11, 2017

Hon. James F. Matthews J.D.C.

Footnotes

Footnote 1:Defendant’s counsel seeks to strike plaintiff’s Notice of Trial and Certificate of Readiness pursuant to 22 NYCRR §208.17, however, the correct cite is 22 NYCRR §212.17.

Footnote 2:Mallella permits insurance carriers with no-fault claims to pursue fraud investigations for good cause and withhold reimbursement from fraudulently licensed medical corporations.

Footnote 3:The Court notes that defendant does not move to compel discovery pursuant to CPLR 3124. Therefore, the Court makes no ruling in this regard, other than stated within this decision.The Court also notes the motion to strike the Notice of Trial and Certificate of Readiness was timely brought within 20 days pursuant to 22 NYCRR §212.17[c], and this was not raised by any party as an issue. Both motions, by plaintiff and by defendant, were marked submit on the same date, and have been consolidated by the Court for the within rendered decision.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. McCormack & Mattei, P.C. (Florina Amlakh, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 12, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action on January 25, 2012 to recover assigned first-party no-fault benefits for medical supplies provided to its assignor, who had allegedly sustained injuries in a motor vehicle accident on May 28, 2011. Defendant served its answer on February 12, 2012. On July 27, 2012, defendant commenced a declaratory judgment action in the Supreme Court, Nassau County, against plaintiff herein, seeking a declaration that defendant was under no obligation to pay any of plaintiff’s claims arising from the accident at issue, since plaintiff had failed to comply with a condition precedent to reimbursement of first-party no-fault benefits by failing to appear for duly scheduled examinations under oath. Plaintiff did not appear or serve an answer in the Supreme Court declaratory judgment action. By judgment entered January 28, 2013, the Supreme Court granted defendant a declaratory judgment on default, and, on April 1, 2013, the default judgment was served with notice of entry on plaintiff. On January 9, 2014, defendant moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by virtue of the declaratory judgment. In opposition, plaintiff argued that there is no preclusive effect from the declaratory judgment because there is no identity of issues between the present action and the declaratory judgment action. By order [*2]entered May 12, 2015, the Civil Court granted defendant’s motion.

In light of the Supreme Court’s declaratory judgment, the Civil Court properly granted defendant’s motion under the doctrine of res judicata (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]). We note that those issues that plaintiff raises for the first time on appeal are unpreserved for appellate review and have not been considered by this court (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.