Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 23, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedules. The Civil Court granted defendant’s motion in its entirety. As limited by its brief, plaintiff appeals from so much of the Civil Court’s order as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules.

The record reflects that plaintiff submitted three claim forms to defendant which included charges for 21 sessions of moxibustion, under code 97039, which is described as “Unlisted modality (specify type and time if there was constant attendance)” and for one session of acupressure, under code 99199, which is described as “Unlisted special service, procedure or report.” The workers’ compensation fee schedules do not assign a relative value to either of those codes, but instead have assigned them a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff did not provide such documentation with its claim forms and defendant did not, within 15 business days of its receipt of the claim forms, request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). As defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules, defendant was not entitled to summary judgment dismissing so much of the complaint as sought [*2]to recover for services rendered under those codes (see Gaba Med., P.C. v Progressive Specialty Ins. Co., 36 Misc 3d 139[A], 2012 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules are denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage for the accident which allegedly occurred on February 13, 2013. By order entered May 28, 2015, the Civil Court granted defendant’s motion.

In support of its summary judgment motion, defendant submitted, among other things, the transcript of the examination under oath of the driver of the insured vehicle. Contrary to plaintiffs’ contention, this transcript was properly considered by the Civil Court because, although it was not signed by the driver, it was certified (see Zalot v Zieba, 81 AD3d 935 [2011]; cf. Lifex Med. Care, P.C. v Safeco Natl. Ins. Co., 32 Misc 3d 126[A], 2011 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). During his examination under oath, the driver testified that he had rented the insured vehicle, which he drove as a livery vehicle, that the assignors had been passengers in his vehicle on February 13, 2013, and that the vehicle had not been involved in an accident on that date. Also, after the passengers in his vehicle called the police and reported that an accident had taken place, the driver told the responding police officer that there had been no accident.

Moreover, contrary to plaintiffs’ contention on appeal, the doctrine of collateral estoppel does not apply in the case at bar since plaintiffs failed to show that the identical coverage issue was necessarily decided in the prior actions to which plaintiffs referred, that such determinations are decisive of the present action, and that there was a full and fair opportunity to contest the issue of coverage in the prior actions (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665-666 [1990]). Plaintiffs’ remaining contentions lack merit.

In view of the foregoing, defendant established its prima facie entitlement to summary [*2]judgment dismissing the complaint by showing that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and plaintiffs failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decided on January 5, 2017

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the rescission of the automobile insurance policy. The Civil Court, by order dated July 30, 2014, denied both motions finding, pursuant to CPLR 3212 (g), that both parties had established their prima facie cases and that the only triable issue of fact is whether the assignor had the intent to misrepresent on his insurance application.

On appeal, defendant contends that Florida law controls and, pursuant to said law, an insurer does not have to prove intent to misrepresent in order to void a policy ab initio; rather, an insurer only has to show that the policy was validly rescinded pursuant to the laws of Florida.

At the time of the accident at issue, which occurred in New York, the vehicle was insured by defendant under a Florida automobile insurance policy, and was being driven by the policyholder, plaintiff’s assignor. After defendant’s investigation revealed that, at the time the insured applied for automobile insurance, plaintiff’s assignor did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

Inasmuch as defendant’s cross motion papers failed to demonstrate that a rescission notice was sent to the insured, or that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant failed to show, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire [*2]and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

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

[*1]

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

Law Offices of Daniel J. Tucker, Brooklyn (Joshua M. Goldberg of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 11, 2016, which granted plaintiff’s motion for a default judgment pursuant to CPLR 3215 declaring that it owes no duty to pay any pending or future no-fault claims arising out of a September 24, 2014 motor vehicle accident, and denied the cross motion of defendant Innovative Medical Heights, P.C. (Innovative Medical) for summary judgment dismissing the complaint as against it and for attorneys’ fees, unanimously affirmed, without costs.

Supreme Court properly granted plaintiff’s motion for a default judgment. The record demonstrates that plaintiff submitted proof that it served Innovative Medical with the summons and complaint, Innovative Medical does not deny that it was received, and Innovative Medical failed to set forth a reasonable excuse as to why it failed to timely answer the complaint (see CPLR 3215 [a], [f]). Innovative Medical’s claim that plaintiff accepted its untimely answer by failing to reject it fails, because plaintiff moved for the default judgment within 13 days of its receipt (see e.g. Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005]).

Furthermore, Innovative Medical’s cross motion was properly denied. Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]). Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.

Decided on December 29, 2016

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Russell Friedman & Associates, LLP, Lake Success (Dara C. Goodman of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 6, 2016, which denied petitioner’s application to vacate a master arbitration award entitling respondent to no-fault insurance benefits, and granted respondent’s cross motion to confirm the award, unanimously affirmed, with costs.

Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (CPLR 7511 [b]). The decision of the Master Arbitrator in affirming the arbitration award had evidentiary support, a rational basis, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). The original arbitrator properly acted within her discretionary authority to refuse to entertain any late submissions proffered by petitioner (see 11 NYCRR 65-4.2 [b] [3]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2d Dept 2009]). Concur—Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels and Feinman, JJ.

Decided on December 16, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered February 25, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for supplies it provided to its assignor for injuries he had sustained in a motor vehicle accident on February 27, 2012, to which claim defendant assigned claim number 1126518. Prior to the commencement of this action, defendant instituted a declaratory judgment action in the Supreme Court, New York County, against plaintiff’s assignor and various medical providers, including plaintiff herein. In an order dated April 25, 2014, the Supreme Court granted, on default, the motion therein for a declaratory judgment, which order stated, among other things, “that, for the purpose of claims submitted by GABRIEL SANFORD, ACTIVE CARE MEDICAL SUPPLY CORP. . . . , defendant GABRIEL SANFORD is not an eligible injured person entitled to no-fault benefits under AMERICAN COMMERCE INSURANCE COMPANY insurance policy ACPA-000653448, Claim No.: 1126518, and [American Commerce Insurance Company] is not obligated to pay for claims seeking no-fault benefits for services or goods provided to GABRIEL SANFORD under this claim number.”

In July 2014, defendant, among other things, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the April 25, 2014 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered February 25, 2015, the Civil Court denied defendant’s motion without prejudice to renewal upon proper papers. The court found that it could not consider the Supreme Court declaratory judgment order annexed to the moving papers because defendant had not included a notice of entry for that order.

Contrary to the determination of the Civil Court, it should have reviewed and considered the Supreme Court declaratory judgment order even though defendant did not provide a notice of entry for it “in view of the binding and conclusive effect of the order” (Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc 3d 143[A], 2014 NY Slip Op 51324[U], *1 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A review of the record establishes that the instant action is barred under the doctrine of res judicata by virtue of the Supreme Court order dated April 25, 2014 (see 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]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order issued by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment 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, 690 [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]).

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

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

[*1]

Civil Court of the City of New York, Kings County, December 8, 2016

APPEARANCES OF COUNSEL

Law Offices of Ilona Finkelshteyn, P.C., Brooklyn, for plaintiff.

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

Plaintiff Clear Water Psychological Services PC seeks to recover no-fault benefits assigned to it by Oshane Crooks (assignor) and moves for summary judgment on the grounds that the bills it submitted to American Transit Insurance Company remain unpaid. Defendant cross-moves for a 90-day stay of the action pending a determination by the Workers’ Compensation Board as to whether the assignor was acting as an employee at the time of the subject automobile accident which occurred on November 10, 2014, and whether he is entitled to workers’ compensation benefits.

At issue is the admissibility of the signed but uncertified police accident report dated November 10, 2014, which indicated that at the time of the accident, the assignor was driving a vehicle with a taxi license plate number and that there were two passengers in the vehicle, to establish that the assignor was acting in the course of his employment. Defendant submits that the report mandates that the 90-day stay be granted.

Facts stated in a police report are not admissible unless they constitute an exception to the hearsay rule (Memenza v Cole, 131 AD3d 1020, 1021-1022 [2d Dept 2015]). If the report is based upon the officer’s personal observations while carrying out police duties, it is admissible as a business record. (Id.; CPLR 4518 [a]; Wynn v Motor Veh. Acc. Indem. Corp., 137 AD3d 779, 780 [2d Dept 2016]; see also Bhowmik v Santana, 140 AD3d 460, 461 [1st Dept 2016] [police accident report, in which officer recorded his own observations that the plaintiff smelled of alcohol and appeared to be intoxicated, was not based on hearsay, and was therefore admissible].)

Pursuant to Vehicle and Traffic Law §§ 603-a and 604, whenever a motor vehicle accident results in serious physical injury, and such accident either is discovered by a police officer, or reported to an officer within five days after an accident, it is the duty of the police to immediately investigate the facts and complete a report on a form prescribed by the Commissioner of Motor Vehicles, a copy of which shall be sent to the Commissioner{**54 Misc 3d at 917} within five business days of the completion of such investigation report (People v Quackenbush, 88 NY2d 534, 539 [1996]; Bouet v City of New York, 125 AD3d 539, 540 [1st Dept 2015]). In New York City, the prescribed police accident report (PAR) is the MV-104AN. (See State of New York Department of Motor Vehicles, Police Accident Report Manual, https://dmv.ny.gov/forms/p33Part01.pdf.)

In the instant action, Police Officer (P.O.) Stephenson filled out this form. The fifth line on the PAR asks for the plate numbers of the vehicles involved in the accident, and the table following line 7 asks for a list of all involved in the accident. As P.O. Stephenson filled out the particulars of the license plate number and the names of the passengers, one can only conclude that his notations were based on his personal observations at the scene of the subject accident.

Although the MV-104AN is signed at the bottom by P.O. Stephenson, it is not certified, and defendant’s cross motion for summary judgment does not contain an affidavit or other sworn evidence from someone with personal knowledge establishing its authenticity or accuracy. CPLR 4518 (c) permits a police report to be admitted as proof of the facts recorded therein only if “[it] bear[s] a certification or authentication by the head of the . . . [police] department . . . or by an employee delegated for that purpose.” Since the MV-104AN is not certified, it does not qualify for admission under CPLR 4518 (c) (Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]; Adobea v Junel, 114 AD3d 818 [2d Dept 2014]; Cheul Soo Kang v Violante, 60 AD3d 991 [2d Dept 2009]).

Although the PAR may not be admitted into evidence in its current form, defendant’s motion still presents factual questions regarding the assignor’s status as an employee of a taxi base, as plaintiff does not dispute the truthfulness of P.O. Stephenson’s observations that the vehicle involved in the subject accident had a taxi license plate. Pursuant to Workers’ Compensation Law § 2 (3) and (4), the term “employer” includes a person or entity who leases a taxicab, and concomitantly, the term “employee” includes “a driver, operator or lessee who contracts with an owner, operator or lessor for the purpose of operating a taxicab” (see Matter of Mihalaris v UTOG 2-Way Radio, 299 AD2d 677, 678 [3d Dept 2002]). The question of the assignor’s employment status and his entitlement to benefits under the Workers’ Compensation Law must be resolved at a hearing before the Board, which has primary jurisdiction over{**54 Misc 3d at 918} deciding these matters (Siekkeli v Mark Mariani, Inc., 119 AD3d 766, 768 [2d Dept 2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 630 [2d Dept 2010]; Speroni v Mid-Island Hosp., 222 AD2d 497, 498 [2d Dept 1995]).

In light of the above, defendant’s motion is granted to the extent that this action shall be [*3]stayed for 90 days pending a prompt application to determine the applicability of the Workers’ Compensation Law to plaintiff’s claim.