Appeal from a judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), entered June 10, 2014. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover assigned first-party no-fault benefits in the sum of $953.77. At a nonjury trial, plaintiff testified that he had performed certain testing on the patient, based on a referral from an orthopedic surgeon, without having inquired as to whether the testing was medically necessary. He stated that he had submitted a claim to defendant for $1,135, but only $181.23 of that claim had been paid, leaving a balance due of $953.77. Defendant’s expert witness, who was board-certified in physical medicine and rehabilitation, testified that there was a lack of medical necessity for the services at issue. Following the trial, the City Court dismissed the action in a judgment entered June 10, 2014.

In a small claims action, this court’s review is limited to a determination of whether “substantial justice has . . . been done between the parties according to the rules and principles of substantive law” (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

The issue at trial was whether the services in question were medically necessary. Plaintiff’s challenge to defendant’s expert witness’s qualifications to testify as to the lack of medical necessity, on the ground that the witness was not an orthopedic surgeon, goes to the weight and not to the admissibility of his testimony (see Vargas v Sabri, 115 AD3d 505 [2014]), and the City Court, as the trier of fact, was free to accept or reject his opinion. The City Court apparently accepted defendant’s expert witness’s testimony and implicitly found that defendant had satisfied its burden of demonstrating that the services were not medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). It was then plaintiff’s burden to prove, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2012]). As plaintiff failed to satisfy his burden, the City Court did not err in dismissing the action.

While plaintiff contends on appeal that he has a hearing impairment which prevented him from fully participating at trial, and that the City Court made no accommodations for his impairment, the record is devoid of any indication that plaintiff had such an impairment or that he had requested an accommodation therefor. This court may not consider matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). Plaintiff’s remaining contentions are either unpreserved for appellate review or without merit.

Accordingly, as the court’s determination is supported by the record and provides the parties with substantial justice (see UCCA 1804, 1807), the judgment is affirmed.

Iannacci, J.P., and Tolbert, J., concur.

Marano, J., taking no part.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 4, 2014. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the action is barred by virtue of defendant’s workers’ compensation fee schedule defense.

ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination of defendant’s motion for summary judgment dismissing the complaint, in accordance with the decision herein.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied the claims at issue on the ground of lack of medical necessity, based on an affirmed independent medical examination report. In the supporting papers, defendant also argued that a portion of each claim sought to be recovered was in excess of the amount permitted by the workers’ compensation fee schedule and, thus, in any event, so much of the complaint as sought such excess amount should be dismissed. Defendant’s denial of claim forms indicate that no payments had been made on the claims. Plaintiff made no arguments and proffered no evidence in its opposition papers with respect to the fee schedule issue. By order dated June 4, 2014, the District Court granted defendant’s motion to dismiss the complaint, stating that the court’s “determination is made on the basis of defendant’s preserved fee schedule defense.”

Plaintiff argues on appeal that its opposition papers in the District Court were sufficient to raise a triable issue of fact as to both the fee schedule defense and defendant’s claim that the services rendered lacked medical necessity.

At the outset, we note that the District Court never addressed the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity. With respect to defendant’s workers’ compensation fee schedule defense, as defendant has indicated that it had made no payments on the claims, it was only seeking to dismiss so much of the complaint as sought to recover an amount in excess of the workers’ compensation fee schedule, and, thus, it was error for the District Court to have awarded defendant summary judgment dismissing the entire complaint on that basis. In view of the foregoing, the District Court should have first addressed defendant’s claim for summary judgment dismissing the [*2]complaint on the ground of lack of medical necessity, as that defense was potentially dispositive of the entire action.

Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination of defendant’s motion for summary judgment dismissing the complaint in accordance with this decision.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 20, 2016

APPEARANCES OF COUNSEL

Nightingale Law, P.C., Glen Cove (Michael S. Nightingale of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondent.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied plaintiff’s claim based on improper billing. The claim form, which had been submitted to defendant by plaintiff under her Social Security number, indicated that the services had been performed by her employee, Dr. Samuel Theagene. Plaintiff’s counsel described plaintiff as an “unincorporated solo practitioner,” conceded that plaintiff uses her own Social Security number when billing no-fault carriers, and contended that such use is proper even when billing for services of an employee. The Civil Court, in an order entered September 8, 2014, denied defendant’s motion, finding, among other things, that there were questions of fact regarding the relationship between plaintiff and the treating doctor. We reverse.

A billing provider seeking to recover no-fault benefits for services rendered to an assignor must provide, at the bottom of the claim form, a taxpayer identification number either in the form of a Social Security number or an employer identification number. Social Security numbers are used to identify individual persons, while employer identification numbers are used to identify employers (see 26 CFR 301.6109-1 [a] [1] [ii]). “An individual . . . who is an employer or who is engaged in a trade or business as a sole proprietor should use an employer identification number” (26 CFR 301.6109-1 [a] [1] [ii] [D]), since an employer identification number is required if the taxpayer “[p]ay[s] wages to one or more employees” (Internal Revenue Service Publication No. 334 [Tax Guide for Small Business], ch 1 [2015]). Thus, it is permissible for a billing provider operating{**54 Misc 3d at 45} as a sole proprietor to use his or her own Social Security number on the claim form if it is the billing provider who rendered the services in question. However, where, as here, a doctor bills for services rendered by a treating provider in that doctor’s employ, it is impermissible for the doctor to bill using his or her own Social Security number.

As defendant demonstrated that the claim form submitted by plaintiff was for services performed by plaintiff’s employee, that the claim form was submitted under plaintiff’s Social Security number, and that the denial of claim form based upon improper billing was mailed within 30 days of defendant’s receipt of the claim form, defendant established its entitlement to summary judgment.

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

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

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 12, 2014. The judgment, entered upon a decision of the same court dated February 4, 2014, after a nonjury trial, awarded plaintiff the principal sum of $7,590.60.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2014 is deemed a premature notice of appeal from the judgment entered November 12, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a New Jersey facility to recover assigned first-party no-fault benefits, the parties stipulated, prior to the commencement of a nonjury trial, that defendant had received plaintiff’s claim form seeking $7,590.60 for a facility fee for a manipulation under anesthesia (MUA) procedure performed at plaintiff’s facility and that defendant had issued a timely denial of claim form premised upon a lack of medical necessity, based on the peer review report of Dr. Robert Snitkoff, a licensed chiropractor, who had been certified in MUA. The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.

In a decision after trial, the Civil Court (Philip S. Straniere, J.) found that Dr. Priolo was a credible witness and that his testimony had sufficiently demonstrated a lack of medical necessity. Because plaintiff had not submitted any evidence to the contrary, the Civil Court determined that “the action must be dismissed.” Nevertheless, the court, in its decision, which ultimately found for plaintiff in the sum of $7,590.60, stated the following: “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,590.60 was entered pursuant to the decision.

The issue in this case is not whether chiropractors are permitted to perform MUA, but [*2]rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question. Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 12, 2014. The judgment, entered upon a decision of the same court dated February 4, 2014, after a nonjury trial, awarded plaintiff the principal sum of $7,790.60.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2014 is deemed a premature notice of appeal from the judgment entered November 12, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a New Jersey facility to recover assigned first-party no-fault benefits, the parties stipulated, prior to the commencement of a nonjury trial, that defendant had received plaintiff’s claim form seeking $7,790.60 for a facility fee for a manipulation under anesthesia (MUA) procedure performed at plaintiff’s facility and that defendant had issued a timely denial of claim form premised upon a lack of medical necessity, based on an independent medical examination (IME). The sole witness to testify at trial was Dr. Kevin S. Portnoy, D.C., a licensed chiropractor, who had performed the IME. Dr. Portnoy testified that he had concluded, based on the IME, that the assignor’s injuries had resolved and that there was therefore a lack of medical necessity for the MUA procedure.

In a decision after trial, the Civil Court (Philip S. Straniere, J.) found that Dr. Portnoy was a credible witness and that his testimony had sufficiently demonstrated a lack of medical necessity. Because plaintiff had not submitted any evidence to the contrary, the Civil Court determined that “the action must be dismissed.” Nevertheless, the court, in its decision, which ultimately found for plaintiff in the sum of $7,790.60, stated the following: “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,790.60 was entered pursuant to the decision.

Dr. Portnoy’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity for any further chiropractic treatment, including the MUA procedure at issue (see Alev Med. Supply, Inc. v [*2]Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, by extension, the facility fee which was sought in the claim in question. Thus, the burden shifted to plaintiff to present evidence as to why that additional treatment was needed either because plaintiff’s assignor’s condition had changed after the IME or because Dr. Portnoy’s opinion following the IME was erroneous. As plaintiff called no witnesses to rebut defendant’s showing of a lack of medical necessity (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Civil Court should have dismissed the complaint.

In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 3, 2014. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $181.50, together with costs, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

In this action by a provider to recover first-party no-fault benefits for medical supplies provided to its assignor, a nonjury trial was held, limited, pursuant to a stipulation, to defendant’s defense of lack of medical necessity. The parties further stipulated to defendant’s witness’s “medical expertise.” Defendant’s doctor stated that he had examined a peer review report prepared by a different doctor, and that he had also reviewed the assignor’s medical records which had been considered by the peer reviewer. The witness testified about the medical supplies at issue, with the exception of a massager, and stated that he agreed with the peer reviewer’s conclusion that the supplies lacked medical necessity. Plaintiff called no witness to rebut defendant’s doctor’s testimony.

In a decision after trial, the Civil Court directed the entry of judgment in favor of plaintiff in the principal sum of $181.50 for a massager, since it was undisputed that defendant’s medical witness had not testified about it. The Civil Court further found that defendant had demonstrated that the remaining supplies in question were not medically necessary, and that plaintiff had failed to rebut defendant’s showing. Thereafter, plaintiff submitted a proposed judgment, which stated only that judgment was rendered in favor of defendant and made no award to plaintiff. The judgment, entered in the Civil Court on July 3, 2014, dismissed the complaint. On appeal, plaintiff argues that the judgment that dismissed the complaint, “except for $181.50,” should be reversed. Defendant concedes that the Civil Court limited plaintiff’s recovery to the sum of $181.50, and defendant raises no issue with respect to that part of the court’s decision after trial.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the case at bar, the record supports the determination of the Civil Court, which was based upon its assessment of the credibility of defendant’s witness and its recognition that plaintiff had not called a rebuttal witness.

However, we note that, whereas the Civil Court, in its decision after trial, directed that plaintiff be awarded the principal sum of $181.50, together with interest, costs and legal fees, the judgment dismissed the complaint. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Kim v Schiller, 112 AD3d 671, 674 [2013]; see Green v Morris, 156 AD2d 331 [1989]). Such an inconsistency may be corrected by way of a motion for resettlement, pursuant to CPLR 2221, or on appeal, pursuant to CPLR 5019 (a) (see Kim, 112 AD3d at 674; Green, 156 AD2d at 331). We therefore reverse the judgment and remit the matter to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $181.50, together with costs, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder (see CPLR 5019 [a]).

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered September 8, 2014. 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 12, 2012 to recover first-party no-fault benefits for medical supplies provided to its assignor, who allegedly sustained injuries in a motor vehicle accident on July 3, 2011. Defendant (Nationwide) answered the complaint in February 2012. On July 27, 2012, Nationwide commenced a declaratory judgment action in Supreme Court, Nassau County, against plaintiff herein, seeking a declaration that Nationwide 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 Nationwide a declaratory judgment on default, and, on April 1, 2013, the default judgment was served with notice of entry on plaintiff. On December 6, 2013, Nationwide moved in the Civil Court for summary judgment dismissing the complaint on the ground that, in essence, plaintiff’s action is barred by virtue of the declaratory judgment. Plaintiff opposed the motion only on the ground that the declaratory judgment had no preclusive effect on the present action.

Thereafter, in a post-motion brief, plaintiff’s attorney argued that Nationwide had waived the defenses of res judicata and collateral estoppel by failing to raise those defenses in its answer or in a motion to dismiss the complaint, and that Nationwide had not moved to amend its answer to include those defenses. Plaintiff’s counsel contended that, even if Nationwide’s motion were treated as implicitly seeking leave to amend its answer, plaintiff was prejudiced by Nationwide’s unexplained delay in making the motion. Defense counsel argued in her post-motion brief that, even if res judicata and collateral estoppel are not asserted in an answer, such defenses may be raised in a motion for summary judgment where, as here, there is an absence of prejudice and surprise to the other side. Defense counsel noted that, in any event, the declaratory judgment had not been entered until after plaintiff had commenced its action in the Civil Court and after Nationwide had answered the complaint. Plaintiff appeals from an order of the Civil Court, [*2]entered September 8, 2014, which granted Nationwide’s motion.

Nationwide had no basis to assert the defenses of collateral estoppel and res judicata before January 28, 2013, when the declaratory judgment was entered in the Supreme Court (see Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While plaintiff contended in the Civil Court that Nationwide had failed to move to amend its answer, the answer may be deemed amended to include the affirmative defenses of collateral estoppel and res judicata (see Barrett v Kasco Constr. Co., 84 AD2d 555 [1981], affd 56 NY2d 830 [1982]), and a waiver of such defenses (see CPLR 3211 [e]) will not result where, as here, the defendant’s failure to assert the defenses in its answer did not take the plaintiff by surprise (see Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; see e.g. Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see also Rogoff v San Juan Racing Assn., 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]). We note that, notwithstanding plaintiff’s conclusory assertion of prejudice, an examination of the record reveals none. “Indeed, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party’ (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see also Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Allen v Matthews, 266 AD2d 782 [1999])” (Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U], *1).

Consequently, in light of the Supreme Court’s declaratory judgment, the Civil Court properly granted Nationwide’s motion for summary judgment 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 this 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]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 14, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Island Life Chiropractic, P.C. (Island Life) commenced this action in the Civil Court on August 19, 2013 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident which had occurred on April 6, 2012. In its answer to the complaint, the insurer identified itself as Kemper Independence Insurance Company (Kemper) and asserted, among other things, that Island Life’s action is barred by collateral estoppel and res judicata. Before Island Life commenced its action, a declaratory judgment action had been commenced in the Supreme Court, New York County, by Kemper against Island Life, five other providers and the assignor herein, Kenny Louissant, alleging that Louissant had breached the terms of insurance policy number FZ717084 by failing to appear for duly scheduled examinations under oath. After Island Life had served an answer in the Supreme Court action, Kemper moved in that court, pursuant to CPLR 3212, for an order declaring there was no coverage for, insofar as is relevant here, Island Life’s claims. Island Life opposed the motion. By order entered October 24, 2013, the Supreme Court declared that Island Life was “not entitled to no-fault reimbursements or benefits for the motor vehicle accident that occurred on April 6, 2012 under policy FZ717084.”

Thereafter, defendant moved in the Civil Court for, among other things, summary judgment dismissing the complaint on the ground that the present action is barred by virtue of the order in the declaratory judgment action. By order entered July 14, 2014, the Civil Court granted defendant’s opposed motion.

Island Life’s contention on appeal, in essence, that defendant Unitrin was not in privity with Kemper, and, thus, that the order in the declaratory judgment action in favor of Kemper has no preclusive effect in the instant action against Unitrin, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]; Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 [1992]; Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op [*2]50133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). There is no merit to plaintiff’s remaining contentions with respect to the lack of preclusive effect of the order in the declaratory judgment action. Consequently, we do not disturb the Civil Court’s determination that the action is barred by res judicata.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered September 3, 2014, deemed from a judgment of the same court entered October 7, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 3, 2014 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,800.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 3, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action is barred by virtue of res judicata. Defendant stated that it had been awarded a declaratory judgment on default in the Supreme Court, Bronx County, which judgment declared that defendant has no obligation to pay assigned first-party no-fault claims to plaintiff, among others, with respect to the motor vehicle accident at issue due to the failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order entered September 3, 2014, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. Defendant’s appeal from the September 3, 2014 order is deemed to be from the judgment entered pursuant thereto on October 7, 2014 (see CPLR 5512 [a]).

The Supreme Court judgment declared that the failure of plaintiff’s assignor to appear for duly scheduled EUOs constituted a material breach of a condition to coverage and that, as a result, defendant is not obligated to pay first-party no-fault benefits related to the subject accident. The Civil Court denied defendant’s motion on the ground that the default declaratory judgment in the Supreme Court action had not been entered by the Bronx County Clerk and served with notice of entry. However, contrary to the determination of the Civil Court, defendant’s moving papers established that the judgment had been entered on May 21, 2013. Moreover, defendant’s failure to serve the Supreme Court’s judgment with notice of entry is not fatal in view of the binding and conclusive effect of the declaratory judgment (see Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc 3d 143[A], 2014 NY Slip Op 51324[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; 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 [*2]2014]). Consequently, in light of the Supreme Court’s declaratory judgment, defendant’s motion for summary judgment should have been granted based on 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 this 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]; EBM Med. Health Care, P.C., 38 Misc 3d 1).

Accordingly, the judgment is reversed, the order entered September 3, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered September 3, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint based on the unpleaded defense of res judicata and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, defendant’s motion for summary judgment dismissing the complaint on that ground is granted, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action is barred by virtue of res judicata. Defendant showed that it had been awarded a declaratory judgment on default in the Supreme Court, Bronx County, which judgment declared that defendant has no obligation to pay assigned first-party no-fault claims to plaintiff, among others, with respect to the motor vehicle accident at issue, due to the failure of plaintiff’s assignor to appear for duly scheduled examinations under oath. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 3, 2014, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

The rule is that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]). Here, defendant failed to include res judicata as an affirmative defense in its answer, or to move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer. Its remedy then was to move pursuant to CPLR 3025 (b) for leave to amend its answer in order to include that defense. Defendant never explicitly so moved and instead moved for summary judgment based on res judicata and also sought “such other and further relief as [the Civil Court] may deem just and proper.” As plaintiff, in opposition to defendant’s motion, failed to allege any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]) or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) resulting from defendant’s seeking summary judgment based on that unpleaded [*2]affirmative defense, under the circumstances, and in the interest of justice, we deem defendant’s answer amended to include the affirmative defense of res judicata (see Barrett, 84 AD2d at 556, affd 56 NY2d 830) and, in light of the Supreme Court’s declaratory judgment, we grant defendant’s motion for summary judgment on that ground (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 this 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]; EBM Med. Health Care, P.C., 38 Misc 3d 1).

Accordingly, the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, defendant’s motion for summary judgment dismissing the complaint on that ground is granted and plaintiff’s cross motion for summary judgment is denied.

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