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.

[*1] (July 6, 2016)

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Don L. Hochler, P.C., Woodbury, NY, for respondent.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Marber, J.), entered October 20, 2014, which, upon an order of the same court entered October 1, 2014, denying that branch of its motion which was pursuant to CPLR 3211 (b) to dismiss the third affirmative defense, granting the defendant’s cross motion to confirm the award of a master arbitrator dated January 24, 2014, and, in effect, denying, as academic, those branches of the plaintiff’s motion which were for summary judgment on the complaint and pursuant to CPLR 3211 (b) to dismiss the first, second, fourth, fifth, seventh, and eleventh affirmative defenses, and pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim, is in favor of the defendant and against the plaintiff in the principal sum of $6,406.82.

Ordered that the judgment is reversed, on the law, with costs, those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first, second, third, and fourth affirmative defenses are granted, the defendant’s cross motion to confirm the award of the master arbitrator is denied as academic, the order entered October 1, 2014, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of those branches of the plaintiff’s motion which were (a) for summary judgment on the complaint, (b) pursuant to CPLR 3211 (b) to dismiss the fifth, seventh, and eleventh affirmative defenses, and (c) pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim.

The plaintiff, AutoOne Insurance Company, a no-fault insurance carrier, was entitled to commence this action to compel the de novo adjudication of the insurance dispute at issue since a master arbitrator’s award in favor of the defendant, Eastern Island Medical Care, P.C., as assignee of Jaime Benitez, exceeded the statutory threshold sum of $5,000 (see Insurance Law § 5106 [c]; Allstate Ins. Co. v Nalbandian, 89 AD3d 648, 649 [2011]; Matter of Capuano v Allstate Ins. Co., 122 AD2d 138, 139 [1986]).

The Supreme Court erred in denying that branch of the plaintiff’s motion which was for summary judgment on the complaint on the ground that the demand for a trial de novo was untimely filed (see Insurance Law § 5106 [c]; CPLR 7511; 11 NYCRR 65-4.10 [h] [2]; see also [*2]Matter of Slater v Eagle Ins. Co., 294 AD2d 368, 369 [2002]). As this arbitration dispute was originally submitted to the American Arbitration Association (hereinafter AAA) and was not court-ordered, the 35-day timetable applied by the court pursuant to 28 NYCRR 28.12 was not applicable (see 22 NYCRR 28.2). Instead, the plaintiff had 90 days from the date the master arbitrator’s award was mailed to it to commence this action (see Insurance Law § 5106 [c]; CPLR 7511; 11 NYCRR 65-4.10 [h] [2]; see also Matter of Slater v Eagle Ins. Co., 294 AD2d at 369), and the plaintiff did so. Thus, the court erred in granting the defendant’s cross motion to confirm the award of the master arbitrator on the ground that this action was not timely commenced and in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (b) to dismiss the third affirmative defense, which alleged that the action was not timely commenced. As the plaintiff timely invoked its right to a de novo review by the Supreme Court, the defendant’s cross motion to confirm the award of the master arbitrator was rendered academic (see Allstate Ins. Co. v Nalbandian, 89 AD3d at 649) and the defense of untimeliness was without merit (see Matter of Slater v Eagle Ins. Co., 294 AD2d at 369; Matter of Abadinsky v Aetna Cas. & Sur. Co., 250 AD2d 673, 673-674 [1998]; Matter of Capuano v Allstate Ins. Co., 122 AD2d at 138).

The defendant’s contention that the plaintiff failed to exhaust its administrative remedies or satisfy a condition precedent because the plaintiff defaulted before the master arbitrator is without merit. There is no dispute that the plaintiff timely demanded review by a master arbitrator within 21 calendar days of the mailing of the award by the AAA no-fault arbitrator (see 11 NYCRR 65-4.10 [d] [2]). Further, the insurance regulations specifically provide that a master arbitration will proceed even if a party fails to appear or submit materials and that the master arbitrator must make a determination on the merits, not in favor of an appearing party solely on the default of the other party (see 11 NYCRR 65-4.10 [d] [8]). Thus, the plaintiff’s failure to file a brief with the master arbitrator was not determinative of whether it satisfied a condition precedent or exhausted its administrative remedies (cf. Allstate Ins. Co. v Nalbandian, 89 AD3d at 649). The plaintiff exhausted its administrative remedies when it filed its demand for review by a master arbitrator, and the master arbitrator issued an award which was final and binding except, as is relevant here, when a party commences a court action to adjudicate the dispute de novo when the award is $5,000 or more (see 11 NYCRR 65-4.10 [h] [1]).

Thus, the Supreme Court also should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first (failure to exhaust administrative remedies), second (default in master arbitration proceeding), and fourth (failure to satisfy condition precedent) affirmative defenses, as those defenses were without merit as a matter of law (see Mazzei v Kyriacou, 98 AD3d 1088, 1089 [2012]; Greco v Christoffersen, 70 AD3d 769, 771 [2010]).

Since the Supreme Court did not consider the merits of those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the remaining affirmative defenses, pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim, and for summary judgment on the complaint, the matter must be remitted to the Supreme Court, Nassau County, for a determination of those branches of the motion on the merits (see Allstate Ins. Co. v Nalbandian, 89 AD3d at 649; Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705 [2010]). Austin, J.P., Cohen, Miller and Duffy, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, June 30, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn, and Law Offices of Kopelevich & Feldsherova, P.C., Brooklyn (Mikhail Kopelevich of counsel), for plaintiff.

Law Office of McCormack & Mattei, P.C., Garden City (Jesse Lubin of counsel), for defendant.

Because of common issues of law and fact, the court consolidated for trial the following matters: Charles Deng Acupuncture, PC, as Assignee of Kesha James v Titan Ins. Co. (CV-005920-14 [the trial commenced and concluded on Feb. 16, 2016]); Pravel, Inc., as Assignee of Yvette Decosta v Nationwide Ins. Co. (index No. CV-019112-14 [the trial commenced and concluded on Feb. 16, 2016]); and Jules Francois Parisien, MD, as Assignee of Hans Destine v Progressive Ins. Co. (index No. CV-032931-14 [the trial commenced and concluded on Feb. 17, 2016]). These matters will result in separate decisions, orders and judgments. The court has considered each party’s posttrial memorandum of law and/or copies of cases provided to it.

In these actions by providers to recover assigned first-party no-fault benefits, the parties stipulated that the plaintiffs met their respective prima facie burdens by timely mailing of bills for payment. (See 11 NYCRR 65-1.1.) The burden now shifts to the defendant to show timely mailing of the notices of the examinations under oath (EUO) and the failure of the providers to attend the scheduled EUOs. (See 11 NYCRR 65-3.5, 65-3.6.)

When the issue involves EUOs, defendant must prove that its EUO requests were timely mailed and that plaintiff’s assignor failed to appear for same. (See Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].)

“Such a showing is established by affidavit on motion for summary judgment and by live testimony at trial (see generally Great Wall, 16 Misc. id at 25; {**53 Misc 3d at 218}Power Acupuncture P.C. v. State Farm Mut. Auto Ins. Co., 11 Misc 3d 1065, 816 N.Y.S.2d 700, 2006 NY Slip Op 50393[U] [Civ. Ct, King’s County 2006]; Roberts Physical Therapy, P.C. v. State Farm Mut. Auto Ins. Co., 14 Misc 3d 1230[A], 836 N.Y.S.2d 495, 2006 NY Slip Op 52565[U] [Civ-Ct, Kings County 2006]; AVA Acupuncture P.C. v. ELCO Administrative Services Co., 10 Misc 3d 1079[A], 814 N.Y.S.2d 889, 2006 NY Slip Op 50158[U] [Civ Ct, Kings County 2006]).” (See New Era Massage Therapy PC v Progressive Cas. Ins. Co., 2009 NY Misc LEXIS 2554, *12, 242 NYLJ 2 [Sup Ct, Queens County, June 26, 2009, CV-065009-08/QU].)

The court accepts the testimony from defendant’s witnesses regarding the policies and procedures for sending out EUO scheduling letters and the court finds that defendant proved timely mailing of the EUO scheduling letters.

The court further accepts the testimony of defendant’s witness, Jamila Shukry, Esq., a senior trial attorney, regarding the policies and procedures concerning the taking of testimony at the examination before trial and the documentation regarding an EUO “no show.” The witness testified that the transcripts were generated in the usual course of its business, that it was the usual course of its business to generate such a record, and that it was made at the time reflected in the transcript. The witness who appeared at the trial, however, was not the assigned attorney and was not personally present at the place where the EUOs were scheduled to take place.

The only remaining issue before the court is whether or not the EUO transcripts allegedly generated at the scheduled EUOs are business records which may be used to show that the respective providers failed to appear at their scheduled EUOs, and the weight to give these records if they are admissible.

The court reviewed the certified EUO transcript of February 21, 2014 alleging the failure of a representative of Pravel, Inc. to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit A); the certified EUO transcript of March 11, 2014 alleging the failure of a representative of Pravel, Inc. to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit B); the certified EUO transcript of October 15, 2013 alleging the failure of a representative of{**53 Misc 3d at 219} Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit C); the certified EUO transcript of October 31, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit D); the certified EUO transcript of December 2, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit E); the certified EUO transcript of December 11, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit F); the certified EUO transcript of December 18, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit G); the certified EUO transcript of December 27, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Yvette Decosta, exhibit H); the certified EUO transcript of September 19, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Kesha James, exhibit A); and the certified EUO transcript of October 7, 2013 alleging the failure of a representative of Charles Deng, LAC to appear and the scheduling letter attached (re: assignor Kesha James, exhibit B).

There is no question that the certified EUO transcripts can be used in a motion for summary judgment (see MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [2014]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [2014]), but there appears to be no cases on “all fours” concerning the use of such EUO transcripts at trial.

The gravamen of the plaintiff’s objection to the transcript being admitted into evidence is that the transcripts are hearsay, that the transcripts were not prepared by the defendant’s law firm, but by the stenographer, and by allowing such a record to be admitted into evidence denies the respective plaintiffs their right to cross-examine the person who allegedly made the record and therefore cannot be a business record. Clearly the transcripts are hearsay, but the question is whether or not the transcripts of the EUO “no shows” are business records which are an exception to the hearsay rule and admissible at trial.{**53 Misc 3d at 220}

CPLR 4518 (a) reflects the following:

“Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.” (Emphasis added.)

The court in Kearney v City of New York (144 Misc 2d 201 [Sup Ct, Kings County 1989]) admitted into evidence the unsworn transcript of a district attorney as a business record to show mandated disclosures made to the defendant in the presence of his counsel. The present matters are distinguishable because the court in Kearney considered a transcript of criminal proceedings made in open court and not in the offices of counsel using a privately paid stenographer. Notwithstanding this distinction, the court in Kearney found a legal duty on the part of both the attorney, as an officer of the court (22 NYCRR 700.4 [a]; People ex rel. Karlin v Culkin, 248 NY 465, 470-471 [1928]; Matter of Mitchell, 40 NY2d 153, 157 [1976]), and the court’s stenographer, to accurately report the information recorded (Judiciary Law arts 9, 15; § 292; see also Judiciary Law § 90).

This court must now consider whether the EUO transcripts, some of which are electronically signed, meet the requirements of the business exception to the hearsay rule under CPLR {**53 Misc 3d at 221} 4518 (a). Here, whether in or out of court, an attorney is an officer of the court (22 NYCRR 700.4 [a]) and is subject to discipline and severe sanctions if s/he misleads the court (Judiciary Law § 487; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.3, reprinted in Judiciary Law Appendix).

Turning to the certifications made by the stenographers, each certification, except for the name of the respective stenographer, reflects the following:

“I, Christa D’Alessandro, a Notary Public in and for the State of New York, do hereby certify:

“THAT the within is a true and accurate transcript of this statement on the record.

“I further certify that I am not related, either by blood or marriage, to any of the parties to this action; and

“THAT I am in no way interested in the outcome of this matter.

“IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of April, 2014.

“Christa D’Alessandro.”

To begin with, a notary public must be licensed by the State of New York, be of high moral character, and must not be convicted of a felony or certain other crimes (Executive Law § 130). A notary may be removed from office “for acts of misconduct as related” since he (or she) is a public officer whose right to remain in office is measured not only by his (or her) activities as such but also by trustworthiness and competence exhibited in other areas in which the public is concerned. (Matter of Patterson v Department of State of State of N. Y., 35 AD2d 616, 617 [3d Dept 1970]; NY CLS Executive Law § 130, Notes to Decision [Case Notes].)

A notary is required to place a statement as to her/his authority, the name of the county in which s/he originally qualified, and the date upon which her/his commission expires. (See Executive Law § 137.) What is crucial for the court’s consideration is found under Executive Law § 137,

“If any notary public shall wilfully fail to comply with any of the provisions of this section, he [or she]^[FN*] shall be subject to disciplinary action by the secretary of state. In all the courts within this state the certificate of a notary public, over his [or her]{**53 Misc 3d at 222} signature, shall be received as presumptive evidence of the facts contained in such certificate; provided, that any person interested as a party to a suit may contradict, by other evidence, the certificate of a notary public.” (Emphasis added.)

This court finds that given the reliability of unsworn statements made by attorneys as officers of the court (22 NYCRR 700.4 [a]), and the standards and licensing requirements of notaries in the State of New York (Executive Law § 130), and the notary’s certificate with its “presumptive evidence of the facts contained in such certificate” (Executive Law § 137), and the language within the certificate “THAT the within is a true and accurate transcript of this statement on the record,” and given that the court credits the testimony of the defendant’s witnesses that the transcripts were generated in the usual course of its business and it was in the usual course of its business to generate such a document, and further given that such transcripts are routinely used and accepted by courts in motions for summary judgment, and given that plaintiff, as an “interested party,” had the opportunity to “contradict, by other evidence, the certificate of a notary public,” and the failure of the plaintiff to appear at trial or to contradict by other evidence the certificate of the respective notaries, this court admits into evidence all the EUO transcripts in this matter. The court further notes that it would be the duty of the defendant to make a record when a party or assignor fails to appear two times for an EUO because unless documented there is no basis to deny benefits for a failure to appear at an EUO under the no-fault law (Stephen Fogel Psychological, P.C.).

This court recognizes there is a qualitative difference between a transcript containing pretrial testimony of a party where CPLR 3117 (a) (2) applies and a transcript which contains an unsworn statement which is certified by the stenographer who is a notary and where CPLR 4518 (a) may apply.

The court in CPT Med. Serv., P.C. v Utica Mut. Ins. (12 Misc 3d 237 [Civ Ct, Queens County 2006, Bernice D. Siegal, J.]) determined that an EUO transcript, which involved an assignor who was not a party to the action, cannot be used in the same manner as a real party in interest under CPLR 3117. This decision is consistent with other holdings regarding the use of depositions from General Municipal Law § 50-h hearings and the inadmissibility of such transcripts when used against{**53 Misc 3d at 223} parties who were not given prior notice of such proceedings. (See and cf. Rivera v New York City Tr. Auth., 54 AD3d 545 [1st Dept 2008].) But in the present matter, the real party in interest, the respective providers, never gave any testimony whatsoever because it is alleged each failed to appear altogether. None of the cases cited by either side considered whether the EUO transcript can be used as a business record at trial under CPLR 4518 (a).

The court in Rizz Mgt. Inc. v State Farm Mut. Auto. Ins. Co. (20 Misc 3d 1102[A], 2008 NY Slip Op 51191[U], *4 [Nassau Dist Ct 2008, Andrew M. Engel, J.]), in the context of a motion for summary judgment, refused to consider the EUO transcript, but that court had a very good reason for doing so because, “[n]otably absent from the transcripts submitted are certifications as to the transcripts’ accuracy, executed by the Notary Public who purportedly took the testimony.” In the instant matter, these certifications are attached to each of the transcripts.

Plaintiff argues that the transcripts are neither affirmations of counsel nor affidavits of laypersons and are nothing but self-serving. Plaintiff further argues that the stenographer transcribes nothing more than an unsworn statement of what was said by defendant’s counsel. But most business records are not affirmations of counsel or affidavits, but simply records kept in the usual course of business or profession to reflect “any act, transaction, occurrence or event.” (See CPLR 4518 [a].) What makes the EUO transcripts “inherently highly trustworthy” is the consequences to the attorney who misleads the court (Judiciary Law §§ 487, 90; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.3, reprinted in Judiciary Law Appendix), the loss of licensure of the notary public for failing to accurately transcribe which is the backbone which allows the “presumptive evidence of the facts contained in such [stenographer’s] certificate” (Executive Law § 137), and the right of the plaintiff to cross-examine and otherwise challenge the defendant’s witnesses. The arguments that plaintiff has made in its memorandum really apply to the weight given the EUO transcripts and not the admissibility of these exhibits as business records.

This court now weighs the evidence in the form of the EUO transcripts, along with the testimony regarding the policies and procedures of the defendant, and finds that the defendant has proved by a preponderance of the evidence that the providers{**53 Misc 3d at 224} have failed to appear at least two times for their respectively scheduled EUOs. No provider appeared at trial to testify.

Based on the foregoing, the clerk is directed to issue a final judgment in favor of the defendant and dismiss the complaint.

Footnotes

Footnote *:The pronoun inserted in the brackets was to balance the referred gender found within the Executive Law without changing its meaning.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 7, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered August 7, 2013, modified by reinstating plaintiff’s claims for first-party no-fault benefits for services rendered July 1, 2010 through July 8, 2010; as modified, order affirmed, with $10 costs.

Defendant made a prima facie showing of entitlement to partial summary judgment dismissing plaintiff’s no-fault claims for services rendered July 12, 2010 through August 31, 2010, by demonstrating that it timely and properly denied the claims based on the June 17, 2010 independent medical examination (IME) report of its examining doctor, which set forth a sufficient basis and medical rationale for the conclusion that there was no need for further acupuncture treatment (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [2016]). Plaintiff’s opposition consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof was insufficient to raise a triable issue as to medical necessity (see Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 143[A], 2012 NY Slip Op 50102[U][App Term, 1st Dept. 2012]). The assignor’s subjective complaints of pain cannot overcome the objective medical tests detailed in the affirmed report of defendant’s examining doctor (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]).

Triable issues remain, however, in connection with plaintiff’s claims for services rendered July 1, 2010 through July 8, 2010. While the record reflects that defendant properly paid a portion of the submitted claims pursuant to the workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]), triable issues remain with respect to the claims denied outright by defendant. Defendant’s position that the charges billed under CPT Code 97039 are not reimbursable because plaintiff is not licensed to provide physical medicine modalities is unpersuasive (see Forrest Chen Acupuncture Servs. P.C. v GEICO Ins. Co., 54 AD3d 996 [2008]; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept. 2014]; Sunrise Acupuncture PC v Tri-State Consumer [*2]Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435[U][App Term, 1st Dept. 2014]), and defendant’s submissions were insufficient to demonstrate prima facie that the claims were properly denied in accordance with Physical Medicine Ground Rule 11.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on June 23, 2016

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