Decided on February 5, 2016

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

Decided on February 5, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

602913/15

Riconda & Garnett, LLP Attorney for the Plaintiff753 West Merrick Road Valley Stream, New York 11580

Law Offices of Bryan M. RothenbergAttorney for the Defendant 90 Merrick Avenue, Suite 300 East Meadow, New York 11554

Danielle M. Medeiros, Esq. Assistant Law Clerk 100 Supreme Court Drive Mineola, New York 11501

Upon the foregoing papers, the Defendant, 21st CENTURY INSURANCE’s (hereafter “21st Century”), motion seeking an order (a) pursuant to CPLR § 3211 (a) (7) dismissing the Plaintiff, MICHAEL BERTUCCI’s First Cause of Action; and (b) pursuant to CPLR § 3211 (a) (7) striking from the Second Cause of Action of the Complaint the claim for punitive damages, is determined [*2]as provided herein.

The Plaintiff, Michael Bertucci, brings this action seeking damages allegedly resulting from the denial of no-fault benefits by his insurer, the Defendant, 21st Century.

The Defendant issued an automobile insurance policy (“the Policy”) to the Plaintiff at his Pennsylvania address located at 101 East Tamarack Court, East Stroudsburg, PA 18302. The Policy provides for the payment of medical bills for the insured.

On November 26, 2014, the Plaintiff was involved in an automobile accident on Deer Park Avenue, in the County of Suffolk, State of New York. As a result of his injuries from this accident, the Plaintiff sought treatment with medical providers in New York. In addition, the Plaintiff forwarded a timely application for no-fault benefits to 21st Century. The Defendant, however, refused to pay any of the Plaintiff’s medical bills arguing that the Plaintiff’s car was principally garaged in New York State rather than in Pennsylvania and thus the Plaintiff violated the conditions of the Policy. Ultimately, approximately seven months from the date of his accident, on June 25, 2015, 21st Century issued a denial of the Plaintiff’s entire claim for no-fault benefits, including for the payment of his medical bills, claiming that the Policy conditions were violated.

This action was commenced seeking damages on the Plaintiff’s First Cause of Action based upon a claim of negligence and a claim for breach of contract including a claim for punitive damages alleged in the Plaintiff’s Second Cause of Action. The Plaintiff claims that his medical treatment has been delayed because of the Defendant’s non-payment of his medical bills, which, in turn has resulted in the aggravation and exacerbation of his injuries. The Plaintiff submits that the Defendant’s delay and failure to timely pay his no-fault benefits has resulted in the delay of his treatment which has complicated his recovery and is the basis of his claims in tort and for breach of contract and for punitive damages.

Specifically, in his First Cause of Action, the Plaintiff asserts that two of his healthcare providers refused to continue to provide services after learning from 21st Century that it would not pay for planned future treatments. In his Second Cause of Action, the Plaintiff alleges that the Defendant breached it contractual obligations under the Policy by failing to pay no-fault benefits required by the Policy and therefore he is entitled to, inter alia, an award of punitive damages.

In moving, post-answer, for an Order seeking to dismiss the negligence and punitive damages claims ^[FN1] , the Defendant argues that the Plaintiff fails to state a cause of action for either claim. Specifically, the Defendant argues that it is “under no legal duty to refrain from communicating with the Plaintiff’s heath care providers regarding its intentions to not pay submitted bills” and that “any failure to pay health care providers is at most a simple breach of contract that is not actionable in tort” (See Affirmation In Support, ¶ 10). Thus, it argues, it is entitled to a dismissal of the Plaintiff’s First Cause of Action. With respect to the claim for punitive damages in the Plaintiff’s Second Cause of Action, the Defendant argues that the Plaintiff’s allegations are insufficient to warrant an award of punitive damages as a matter of law.

On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the Court must accept as true, the facts “alleged in the complaint and submissions in opposition to the motion, and accord [*3]plaintiffs the benefit of every possible favorable inference,” determining only “whether the facts as alleged fit within any cognizable legal theory” (Simkin v. Blank, 19 NY3d 46, 52 [2012]; Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Polonetsky v. Better Homes Depot, 97 NY2d 46, 54 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Indeed, the plaintiff has no obligation on a motion to dismiss to demonstrate evidentiary facts to support the allegations contained in the complaint. (Stuart Realty Co. v. Rye Country Store, 296 AD2d 455 [2d Dept. 2002]; Paulsen v. Paulsen, 148 AD2d 685, 686 [2d Dept. 1989])

However, conclusory averments of wrongdoing are insufficient to sustain a complaint. (DiMauro v. Metropolitan Suburban Bus Auth., 105 AD2d 236 [2d Dept. 1984]) Thus, bare legal conclusions and factual allegations “flatly contradicted by documentary evidence in the record are not presumed to be true, and [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action”. (Deutsche Bank Natl. Trust Co. v. Sinclair, 68 AD3d 914, 915 [2d Dept. 2009] quoting Peter F. Gaito Architecture., LLC v. Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept. 2007])

Here, the Plaintiff’s attempt to assert a claim for negligence against the Defendant based upon its communications with his health care providers fails to withstand the Defendant’s motion to dismiss. The law is settled. A claim for negligence requires the pleading of facts that impose a duty of care upon the defendant in favor of the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of plaintiff’s injuries. (Pulka v. Edelman, 40 NY2d 781 [1976]; Akins v. Glens Falls School Dist., 53 NY2d 325, 333 [1981]) Absent a duty of care, there is no breach, and without breach there can be no liability. (Pulka v. Edelman, supra; Gordon v. Muchnick, 180 AD2d 715 [2d Dept. 1992]) Preliminarily, however, whether a duty of care is imposed upon the defendant in favor of the plaintiff under the circumstances alleged is an issue of law for the court to decide. (Church v. Callanan Indus., 99 NY2d 104 [2002])

Here, the Plaintiff has failed to specify or identify the duty that he claims the Defendant allegedly breached. This is fatal on a motion seeking to dismiss the negligence claim based on the failure to state a cause of action.

Indeed, even affording the Plaintiff a liberal construction of his claims, it is clear to this Court that insofar as the gravamen of the First Cause of Action is that health care providers refused to continue to provide service after learning from 21st Century that it would not pay for planned future treatments, the asserted duty, if any, lies in either the act of communication or in the content of the communication. As best determined from the papers submitted herein, including the Plaintiff’s opposition papers, it is the Plaintiff’s contention that his tort claim is based upon 21st Century’s denial of his no-fault benefits claim without justification (i.e., the content of the Defendant’s communication) (See Affirmation In Opposition, ¶¶ 16, 21). To that end, this Court finds that the decision of the insurance company to not pay for treatment does not establish a tort cause of action independent from the breach of contract claim. (Logan v. Empire Blue Cross & Blue Shield, 275 AD2d 187 [2d Dept. 2000]) As the Second Department held in Logan v. Empire Blue Cross & Blue Shield, supra:

[The insurer] d[oes] not owe the [individual insureds] a duty to perform its contractual obligations [*4]with reasonable care. The respective contracts of insurance between [the insurer] and the [individual insureds] d[oes] not create a relationship for which a duty is owed to the plaintiff separate from the contractual obligation’ ***

(Logan v. Empire Blue Cross & Blue Shield, supra at 192 [citations omitted]).

Thus, while the Plaintiff’s attempt to enforce a claimed right to have the Defendant pay his medical bills may be valid under a contract theory, it does not form a basis for a negligence (tort) claim herein.

Moreover, even if this Court were to construe the Plaintiff’s negligence claim as one based upon the Defendant having communicated with the Plaintiff’s medical providers (regardless of the content of the communication), the act of communicating, also, can not form a basis for a negligence claim. Indeed, the Plaintiff has failed to identify any legal basis which proscribes the Defendant from communicating with a policyholder’s health care providers regarding the status of its coverage investigation.

Therefore, the branch of the Defendant’s motion seeking to dismiss the Plaintiff’s First Cause of Action should be granted.

With regard to the branch of the Defendant’s motion seeking to dismiss the claim for punitive damages contained in the Plaintiff’s Second Cause of Action, initially, it is noted that no separate cause of action for punitive damages lies for pleading purposes. (Paisley v. Coin Device Corp., 5 AD3d 748 [2d Dept. 2004]; Crown Fire Supply Co. v. Cronin, 306 AD2d 430, 431 [2d Dept. 2003])

Moreover, in an action based on breach of contract, “punitive damages may be recoverable if necessary to vindicate a public right”. (New York Univ. v. Continental Ins. Co., 87 NY2d 308, 315 [1995]; citing Rocanova v. Equitable Life Assur. Socy., 83 NY2d 603, 613 [1994]) Punitive damages may not be used to remedy private wrongs. In addition, one of the necessary elements in such a case is that the “defendant’s conduct must be actionable as an independent tort”. (New York Univ. v. Continental Ins. Co., supra, at 316; Rocanova v. Equitable Life Assur. Socy., supra) A breach of contract can be an actionable independent tort when the nature of the contracting party’s services is to protect people and property from physical harm. (New York Univ. v. Continental Ins. Co., supra at 317)

Here, in support of his claim for punitive damages, the Plaintiff asserts that 21st Century’s actions were “wanton, willful, and in reckless disregard for the rights of plaintiff” (See Complaint, ¶ 61). Not only is this bare characterization without consequence and wholly deficient to withstand the Defendant’s motion to dismiss (see generally, Barker v. Amorini, 121 AD3d 823, 824 [2d Dept. 2014]), by a simple reading, it is clear that none of the facts alleged establish a conduct on the part of the Defendant that is part of a pattern directed at the public generally. In addition, as noted above, because the Plaintiff has also failed to establish any independent basis for determining that the Defendant’s conduct constitutes a tort independent of the insurance contract itself, the Plaintiff’s demand for punitive damages requires dismissal. (New York Univ. v Continental Ins. Co., supra, at 320)

Similarly, that portion of the Plaintiff’s claim, which is seeks punitive damages, as alleged in his Second Cause of Action, should be dismissed.

The parties’ remaining contentions have been considered and do not warrant discussion.

Accordingly, it is hereby

ORDERED, that the Defendant, 21st CENTURY INSURANCE’s motion seeking an order (a) pursuant to CPLR § 3211 (a) (7) dismissing the Plaintiff, MICHAEL BERTUCCI’s First Cause of Action; and (b) pursuant to CPLR § 3211 (a) (7) striking from the Second Cause of Action of the Complaint the claim for punitive damages, is GRANTED.

This constitutes the Decision and Order of the Court.

DATED: February 1, 2016
Mineola, New York
________________________________
Hon. Randy Sue Marber, J.S.C.

Footnotes

Footnote 1:Despite the fact that this motion to dismiss, made pursuant to CPLR § 3211 (a) (7) is made shortly after serving of the Defendant’s Answer and before any disclosure, this Court will nevertheless treat this application as a narrowly framed post-answer CPLR § 3211 (a) (7) motion.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 3, 2013. The order granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In April 2012, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, Balgobin Manoo, who had allegedly sustained injuries in a motor vehicle accident which had occurred on November 14, 2011. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, New York County, against Manoo, plaintiff and other providers, seeking a declaration that the defendants therein were not entitled to no-fault benefits as a result of the November 14, 2011 accident involving Manoo, on the ground that Manoo had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled examinations under oath (EUOs). Neither plaintiff nor Manoo appeared or served an answer in the Supreme Court declaratory judgment action.

In November 2012, plaintiff moved in this action for summary judgment. In June 2013, defendant cross-moved in this action for summary judgment dismissing the complaint based upon Manoo’s failure to appear at scheduled EUOs. In addition to submitting various affidavits and documents in support of the cross motion, defendant submitted an affirmation of defense counsel which stated that defendant had made a motion for the entry of a default judgment against plaintiff and Manoo in the Supreme Court declaratory judgment action, which motion was unopposed, and that defendant was expecting a decision in its favor. Upon receipt of a decision in that action, defendant reserved its right to supplement its cross motion with that decision or to include the decision with its reply affirmation. Approximately one week later, plaintiff submitted an affirmation in opposition to defendant’s cross motion, without mentioning the declaratory judgment action. In August 2013, defense counsel submitted a reply affirmation, noting that, on July 8, 2013, an order had been entered on default in the Supreme Court declaratory judgment action declaring that plaintiff herein and its assignor had no right to be reimbursed for services rendered to the assignor and that defendant herein had no obligation to provide coverage for no-fault claims with respect to the accident in question. Plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion, based on the Supreme Court order, and dismissed the complaint.

Plaintiff argues that by failing to plead collateral estoppel or res judicata as affirmative defenses in its answer, defendant waived those defenses (see CPLR 3018 [b]). Initially, we note [*2]that defendant’s failure to raise the affirmative defenses of collateral estoppel or res judicata in its answer was understandable and excusable since defendant had no reason to assert these defenses before July 2013, when the Supreme Court entered the order in the declaratory judgment action. In any event, a waiver will not result if a defendant’s failure to plead a matter affirmatively does not take the adverse party by surprise (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]). 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]).

Defense counsel’s affirmation in support of defendant’s cross motion (which alerted plaintiff that an order in the declaratory judgment action was imminent) as well as the reply papers (which included a complete set of pleadings, motion papers and the order in the declaratory judgment action) apprised plaintiff that defendant was asserting the affirmative defenses of collateral estoppel and res judicata based on the declaratory judgment action, and plaintiff chose not to address this issue, either in opposition to defendant’s cross motion or by way of surreply. Nor does the record indicate that there was any prejudice to plaintiff.

In any event, this court may take judicial notice of undisputed court records and files, including the order in the Supreme Court declaratory judgment action (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). Having done so, we find that the present action is barred under the doctrine of res judicata, for the reasons stated in Renelique as Assignee of Balgobin Manoo v State-Wide Ins. Co. (__ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-2314 Q C], decided herewith).

Plaintiff’s remaining contentions on appeal are without merit.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 3, 2013. The order, upon, in effect, treating defendant’s motion to dismiss the complaint as one for summary judgment dismissing the complaint, granted the motion.

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

In May 2012, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident which had occurred on November 14, 2011. Issue was joined in July 2012. Subsequently, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (5), contending that plaintiff’s cause of action was barred by virtue of an order entered on July 8, 2013 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that plaintiff herein and its assignor had no right to be reimbursed for services rendered to the assignor and that defendant herein had no obligation to provide coverage for no-fault claims with respect to the accident in question. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.

At the outset, we note that although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), it was made after issue was joined (see generally CPLR 3211 [e]). In these circumstances, the CPLR requires the court to give “adequate notice to the parties” that it will treat defendant’s motion to dismiss as one for summary judgment (CPLR 3211 [c]). Here, however, an exception to the notice requirement was applicable, since defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]). Consequently, it was proper for the Civil Court to, in effect, treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320.)

In light of the July 8, 2013 Supreme Court order, the present action is barred under the doctrine of res judicata (see Flushing Traditional Acupuncture P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; 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, 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 Supreme Court order (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Moreover, the Supreme Court’s order is a conclusive final [*2]determination, notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 658, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

Plaintiff’s remaining contentions are not properly before this court, as they were raised for the first time on appeal.

Accordingly, the order is affirmed.

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

Decided on January 13, 2016

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 8, 2014, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 8, 2014, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms on January 10, 2011 (see 11 NYCRR 65-1.1; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U][App Term, 1st Dept 2015]), and such request complied with the applicable procedures and time-frames set forth in the no-fault regulations (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]; cf. American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [2015]). Moreover, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or [*2]otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin, 82 AD3d at 560). Accordingly, when the assignor failed to appear for the requested acupuncture IMEs, defendant had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied certain of the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied; as so modified, the order, insofar as appealed from, 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. Insofar as is relevant to this appeal, by order entered April 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims 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, 11th & 13th Jud Dists 2011]). Consequently, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment upon the first and third through seventh causes of action. We note that even if plaintiff had made a prima facie showing of its entitlement to summary judgment upon the seventh cause of action, it would not be entitled to summary judgment thereon, as the conflicting medical expert opinions proffered by the parties demonstrated the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests [*2]and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first and third through sixth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from an employee of National Billing & Collections, Inc., which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 14, 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 affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for medical supplies it provided to its assignor, who had sustained injuries in a motor vehicle accident that had occurred on March 20, 2012. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, Bronx County, against plaintiff and various other medical providers, as well as the allegedly injured assignor. On June 7, 2013, the Supreme Court granted defendant’s motion, “pursuant to CPLR 3215 and CPLR 3212 (b), seeking a default judgment or summary judgment” and found that the medical providers named therein, including plaintiff herein, as well as plaintiff’s assignor, were not entitled to recover no-fault benefits arising out of the motor vehicle accident that had occurred on March 20, 2012, and judgment was entered therein on August 13, 2013. In June 2013, plaintiff moved in the instant case for, among other things, summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by virtue of the declaratory judgment. By order entered February 14, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the instant action is barred under the doctrine of res judicata based upon the declaratory judgment (see Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 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 Supreme Court (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] [App Term, 2d, 11th & 13th Jud Dists 2012]). Moreover, the declaratory judgment is a conclusive final determination notwithstanding that it may have been entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of [*2]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 lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

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

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated April 10, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant denied the claim at issue based upon the assignor’s alleged failure to appear at duly scheduled examinations under oath (EUOs). Defendant moved for summary judgment dismissing the complaint on the ground that, by failing to appear at the EUOs, plaintiff’s assignor had failed to comply with a condition precedent to coverage. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the District Court as denied defendant’s motion.

On this record, we find that there is an issue of fact as to whether plaintiff’s assignor failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An assignor’s appearance at a scheduled EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date (see e.g. Five Boro Psychological Services, P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [a mutual rescheduling, which occurs prior to the date of a scheduled EUO, does not constitute a failure to appear]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment (see Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). [*2]However, the record does not reveal the surrounding circumstances, for example, when exactly plaintiff requested the adjournment or when or how defendant responded. Without such details, we cannot determine the reasonableness and/or timeliness of each party’s conduct. Therefore, we cannot determine if plaintiff’s assignor should be deemed to have failed to appear on January 28, 2011 and, thus, whether there was a failure to comply with a condition precedent to coverage.

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

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