Decided on January 24, 2018

Defendant appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated May 9, 2017, which, upon renewal, adhered to a prior order denying its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), dated May 9, 2017, insofar as appealed from, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida Law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v Infinity Ins. Co., 2017 NY Slip Op 50332[U]).

In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v Infinity Ins. Co., 2016 NY Slip Op 50391[U]).

We have considered plaintiff’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered August 29, 2014, which granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Jose A. Padilla, Jr., J.) entered August 29, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the governing fee schedule (see Healthy Way Accupucture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). The new arguments raised in defendant’s reply papers, even if properly considered (cf. Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]) failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]), and, in any event, revealed additional matters in dispute.

We have considered the parties’ remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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 Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered January 19, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered January 19, 2016, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee who described the details of her search of defendant’s records and stated that her search had revealed that there was no coverage by defendant for the vehicle in question on the date of the accident. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claims did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for [*2]summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

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.