Decided on June 23, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 2, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

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

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it rendered to its assignor for injuries he had sustained in a motor vehicle accident on April 25, 2012. Prior to the commencement of this action, defendant instituted a declaratory judgment action in the Supreme Court, New York County, against plaintiff’s assignor and various medical providers, including plaintiff herein. By order dated December 4, 2012, the Supreme Court granted, on default, the motion therein for a declaratory judgment, which order stated, among other things, that it is “ORDERED, ADJUDGED and DECLARED that Jose Ramon Fernandez Perez is not an eligible injured person to no-fault benefits under American Transit . . . policy CAP 612795, Claim No. 76337-03 . . . . American Transit is not required to provide, pay or honor or reimburse any claims . . . seeking to recover no-fault benefits arising under . . . policy CAP 612795, Claim No. 76337-03 from the alleged accident of April 25, 2011 involving . . . Jose Ramon Fernandez Perez.”

In October 2012, plaintiff moved for summary judgment in the instant action and defendant cross-moved to dismiss the complaint on the ground that the December 4, 2012 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered May 2, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the Civil Court correctly determined that the instant action is barred under the doctrine of res judicata by virtue of the Supreme Court order dated December 4, 2012 (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). The [*2]Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2000]; 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]). Plaintiff’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

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

Decided on June 22, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 2, 2014. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. With respect to the first through third causes of action, defendant contended that it had timely denied the claims based on plaintiff’s assignor’s fraudulent procurement of the insurance policy, in that plaintiff’s assignor had materially misrepresented his address in order to procure a lower insurance premium. Defendant further contended that the remaining claims (the fourth through sixth causes of action) were premature, as there were outstanding verification requests. By order entered October 2, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff’s motion was properly denied, as plaintiff did not demonstrate either that defendant had failed to deny the claims at issue within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Defendant’s cross motion should also have been denied. With respect to the first through third causes of action, defendant failed to establish that it had timely mailed letters scheduling plaintiff’s assignor’s examination under oath (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); therefore, defendant failed to demonstrate, as a matter of law, that it had tolled its time to deny those claims on the proffered ground of fraudulent procurement of the insurance policy (see Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2014]). Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). For the foregoing reasons, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied.

With respect to the fourth through sixth causes of action, defendant’s claims examiner submitted an affidavit establishing the timely mailing of its verification requests and its follow-up verification requests (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant also demonstrated prima facie that the requested verification information had not been received (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in response to the cross motion, plaintiff’s owner submitted an affidavit which was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, a triable issue of fact exists as to whether causes of action four through six are premature (see id.).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 8, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branches of plaintiff’s cross motion seeking summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. As limited by its brief, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion and denied the aforementioned branches of plaintiff’s cross motion.

Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff failed to raise an issue of fact as to whether it had timely responded in any way to the EUO requests at issue. While plaintiff attached one letter allegedly objecting to the EUO in question, plaintiff did not allege, much less prove, that it had actually sent the letter. In any event, the letter is dated, and marked as sent on, June 3, 2011, two days after plaintiff’s second failure to appear for an EUO in this case. As plaintiff failed to timely object to the EUO requests in claims processing, it may not raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and any discovery [*2]relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]). Consequently, contrary to plaintiff’s further argument on appeal, there was no outstanding discovery warranting the denial of defendant’s motion pursuant to CPLR 3212 (f).

The issues raised in plaintiff’s remaining arguments are moot and/or lack merit.

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

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

[*1]

Jeffrey I. Baum & Associates, P.C., Garden City, NY (Maksim Leyvi of counsel), for appellants.

McDonnell & Adels, PLLC, Garden City, NY (Stuart M. Flamen and Stephanie A. Tebbett of counsel), for respondents.

In an action for declaratory relief and to recover damages for fraud and unjust enrichment, the defendants Raia Medical Health, P.C., and Joseph A. Raia appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), entered July 3, 2014, as granted the plaintiffs’ motion to preliminarily enjoin the defendants Raia Medical Health, P.C., and New Imaging & Diagnostic Services, P.C., inter alia, during the pendency of this action, from, among other things, commencing against the plaintiffs any new actions, arbitrations, or proceedings seeking reimbursement for no-fault benefits, and staying all such currently pending actions, arbitrations, or proceedings, and denied their cross motion pursuant to CPLR 7503 (a) to compel arbitration and stay all further proceedings in the action.

Ordered that the appeal from so much of the order as granted that branch of the plaintiffs’ motion which was for a preliminary injunction against the defendant New Imaging & Diagnostic Services, P.C., is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The defendant Raia Medical Health, P.C. (hereinafter RMH), which was owned by the defendant Joseph A. Raia (hereinafter together the appellants), allegedly billed the plaintiffs for medical services rendered to injured parties who had assigned their no-fault insurance benefits to RMH. In November 2013, the plaintiffs commenced this action for declaratory relief and to recover damages for fraud and unjust enrichment, alleging, inter alia, that RMH was ineligible to recover no-fault benefits, since it was not wholly owned and controlled by licensed physicians and was engaged in fee splitting with unlicensed individuals. The plaintiffs moved to preliminarily enjoin, among others, RMH, its agents, servants, employees, and all persons acting on its behalf, during the [*2]pendency of this action, from, among other things, “filing, commencing and/or instituting against plaintiffs any new actions, arbitrations or other proceedings seeking reimbursement for no-fault benefits,” and “staying all currently pending actions, arbitrations or other proceedings instituted by and/or on behalf of [RMH] against plaintiffs involving reimbursement for no-fault benefits.” The appellants cross-moved pursuant to CPLR 7503 (a) to compel arbitration and to stay all further proceedings in the action. The Supreme Court granted the preliminary injunction sought by the plaintiffs and denied the appellants’ cross motion.

“To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury if a preliminary injunction is not granted, and (3) a balance of equities in his or her favor” (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 859, 860 [2015]; see CPLR 6301; Doe v Axelrod, 73 NY2d 748, 750 [1988]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 791-792 [2012]). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” (Arthur J. Gallagher & Co. v Marchese, 96 AD3d at 792; see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]).

Here, the plaintiffs demonstrated a likelihood of success on the merits on their declaratory judgment causes of action. “Insurance Law § 5102 et seq. requires no-fault carriers to reimburse patients (or, as in this case, their medical provider assignees) for ‘basic economic loss’ ” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005]). However, “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (11 NYCRR 65-3.16 [a] [12]). “State law mandates that professional service corporations be owned and controlled only by licensed professionals” (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]), and provides that a professional service corporation may issue shares only to individuals, inter alia, “who are or have been engaged in the practice of such profession in such corporation or a predecessor entity” (Business Corporation Law § 1507 [a]). In this case, the plaintiffs established that RMH provided only radiological services consisting of X rays, and MRI and CT scans, and produced an affidavit from Raia, in which he admitted that he had “no training or experience in the field of radiology, including the performance and/or interpretation of MRI studies and/or x-rays.” Raia also averred that he did not consider himself “competent [in] either (i) interpreting MRI studies and/or x-ray studies that are performed on patients; or (ii) supervising the interpretations of MRI studies and/or x-ray studies.” The plaintiffs also submitted an affidavit from an investigator for the plaintiff Liberty Mutual Insurance Company within its Special Investigations Unit, who concluded that RMH was merely a “reincarnation” of Socrates Medical Health, P.C. (hereinafter Socrates), a predecessor professional corporation purportedly owned by Raia which was actually controlled by a nonphysician. The investigator indicated, among other things, that Socrates’s medical director, who was also RMH’s initial medical director, had previously faced “charges by the Attorney General of New Jersey that included being employed by unlicensed MRI facilities and negligently misreading MRI studies,” and had “agreed to pay $60,000.00 and be subject to monitoring for two years.” Thus, the plaintiffs’ submissions demonstrated a likelihood of success on the merits.

Further, under the circumstances of this case, the plaintiffs demonstrated the likelihood of irreparable injury absent the granting of the preliminary injunction, based on the multiplicity of actions and arbitrations, and the risk of inconsistent results (see Ansonia Assoc. v Ansonia Residents’ Assn., 78 AD2d 211, 219 [1980]; 21st Century Advantage Ins. Co. v Cabral, 35 Misc 3d 1240[A], 2012 NY Slip Op 51086[U] [Sup Ct, Nassau County 2012]; St. Paul Travelers Ins. Co. v Nandi, 15 Misc 3d 1145[A], 2007 NY Slip Op 51154[U] [Sup Ct, Queens County 2007]; Allstate Ins. Co. v Elzanaty, 929 F Supp 2d 199, 221-222 [ED NY 2013]; cf. Matter of Countrywide Ins. Co. v DHD Med., P.C., 86 AD3d 431, 431 [2011]). The plaintiffs submitted evidence of well over 100 pending actions and open arbitrations commenced against them by RMH. Lastly, the plaintiffs established that the balance of the equities was in their favor.

The appellants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion [*3]which was for a preliminary injunction against RMH and denied the appellants’ cross motion pursuant to CPLR 7503 (a) to compel arbitration and stay all further proceedings in the action. Rivera, J.P., Roman, Maltese and Duffy, JJ., concur.

Decided on June 20, 2016

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 25, 2013. The order denied plaintiff’s motion to vacate a prior order of the same court (Carolyn E. Wade, J.) entered May 18, 2012, which granted, on default, defendant’s 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, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Thereafter, the parties entered into a two-attorney stipulation which provided a schedule for serving opposition papers, any cross motion and reply papers. Although the stipulation required that plaintiff’s opposition was to be served on or before March 18, 2012, plaintiff served its opposition papers on March 29, 2012. By order entered May 18, 2012, the Civil Court (Carolyn E. Wade, J.) granted, on default, defendant’s motion for summary judgment, declining to consider plaintiff’s late opposition to the motion. On March 22, 2013, plaintiff moved for an order, pursuant to CPLR 5015, vacating the order entered May 18, 2012. Plaintiff appeals from an order of the Civil Court (Harriet L. Thompson, J.) entered October 25, 2013, which denied its unopposed motion.

To vacate the order granting, on default, defendant’s motion for summary judgment, plaintiff was required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). In an affirmation in support of plaintiff’s motion to vacate the default order, plaintiff’s attorney stated that the affirmation of medical necessity from its expert, who was not the treating doctor, did not become “available” until shortly after the date that plaintiff’s opposition papers were due. Upon the record presented, we find that the explanation proffered by plaintiff’s attorney was insufficient to establish a reasonable excusable for plaintiff’s failure to timely oppose defendant’s summary judgment motion (see Starakis v Baker, 121 AD3d 669 [2014]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812 [2012]). Moreover, plaintiff’s attorney offered no reason for waiting 10 months before moving to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]; A.B. Med, PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the lack of an excusable default, it is unnecessary to consider [*2]whether plaintiff sufficiently demonstrated the existence of a potentially meritorious opposition to defendant’s motion for summary judgment (see KI 12, LLC v Joseph, 137 AD3d 750 [2016]; BAC Home Loans Servicing, LP v Reardon, 132 AD3d 790 [2012]).

Accordingly, the order is affirmed.

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

Decided on June 15, 2016

Plaintiff appeals from an order the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered April 23, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered April 23, 2014, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath [EUOs] to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial EUO and the June 20, 2011 rescheduled follow-up EUO (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d at 411; American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]).

In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705[2011]).

Plaintiff’s remaining contentions are either without merit or, where plaintiff failed to articulate any specific arguments in its appellate brief, abandoned on appeal (see Mendoza v Akerman Senterfitt LLP, 128 AD3d 480, 483 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.