The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered July 16, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered July 16, 2024 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification. While plaintiff does not argue that its cross-motion should have been granted, on appeal, plaintiff argues that the order, insofar as appealed from, should be reversed and the matter remitted to the Civil Court for consideration of what plaintiff denominated as an amended cross-motion, which the court declined to consider, rejecting that submission as an improper surreply. In the alternative, plaintiff argues that defendant’s motion should have been denied.

Contrary to plaintiff’s contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [1]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke Physical Therapy, P.C., v State Farm Mut. Auto. Ins. Co., 85 Misc 3d 130[A], 2025 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Plaintiff also argues that the instant action cannot be maintained, as collateral estoppel effect should be given to an order of the Supreme Court, Nassau County, in a declaratory judgment action brought by defendant herein in that court, denying defendant’s motion for [*2]summary judgment (see State Farm Mut. Auto. Ins. Co. v Burke Physical Therapy, P.C., 2022 NY Slip Op 30580[U] [Sup Ct, Nassau County 2022]). However, this court has previously held that the denial of that motion by the Supreme Court “has no preclusive effect . . . as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not address plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider plaintiff’s subsequent submission of that Supreme Court decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

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

MUNDY, J.P., BUGGS and QUIÑONES, JJ., concur.

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Richard Rozhik of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper and Argyria Kehagias of counsel), for respondent.

Appeal by permission from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated December 9, 2021. The order granted defendant’s oral motion to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, defendant’s motion to dismiss the complaint is denied and the matter is remitted to the Civil Court for all further proceedings.

After this action by a provider to recover assigned first-party no-fault benefits commenced, the parties entered into a stipulation dated September 24, 2009 which provided that, if plaintiff did not receive payment as set forth in the stipulation within 30 days, plaintiff could enter judgment for the amount demanded in the complaint without further notice. In 2019, plaintiff moved to enter judgment pursuant to the stipulation. After the unopposed motion was granted (Lorna J. McAllister, J.), a judgment was entered in favor of plaintiff. Defendant moved to vacate the judgment, contending, among other things, that it had not received plaintiff’s motion to enter a judgment and that it had timely paid the amounts set forth in the stipulation. The Civil Court (Rupert V. Barry, J.) granted defendant’s motion to vacate the default judgment, finding that defendant had not received plaintiff’s motion seeking entry of the judgment, and ordered a hearing to determine whether defendant had complied with the stipulation. When the parties appeared for the hearing, defendant orally moved to dismiss plaintiff’s claim on the ground that the claim to recover upon the stipulation was barred by the statute of limitations. By order dated December 9, 2021, the Civil Court (Rupert V. Barry, J.) granted defendant’s oral motion to dismiss the complaint, finding that, “as recited in CPLR § 213 (1), Plaintiff needed to have commenced its action ‘within six years’ . . . [but] Plaintiff commenced [this] action to enforce its settlement agreement outside the 6 years statute of limitations.” Plaintiff appeals, by permission [*2](Arguelles, M.D., P.C. v AIG Natl. Ins. Co., 2024 NY Slip Op 76031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]), from the December 9, 2021 order.

“The parties’ [2009] stipulation expressly permitted [plaintiff] to apply to the court for a judgment based upon any future default without any time limits (see Marine Midland Bank v Worldwide Industrial Corp., 307 AD2d 221 [2003])” (Cook v Greenbaum, 18 AD3d 416, 417-418 [2005]). “Had respondents desired to impose a time limit on the enforcement of their obligations under the stipulation, they had only to incorporate the appropriate language into their agreement” (Marine Midland Bank, 307 AD2d at 222). To the extent defendant contends that the order should be affirmed pursuant to CPLR 3215 (c) because plaintiff did not seek entry of the judgment within one year of the alleged default, such a contention lacks merit as “[e]ntry of a default judgment for failure to comply with a stipulation of settlement is specifically provided for by CPLR 3215 (i) (1), which contains no time limit for entering such judgment” (id.).

Accordingly, the order is reversed, defendant’s motion to dismiss the complaint is denied and the matter is remitted to the Civil Court for all further proceedings.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

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, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

For the reasons stated in Burke Physical Therapy, P.C., as Assignee of Brown, Wildex v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2025 NY Slip Op _____ [appeal No. 2023-1091 K C], decided herewith), the order, insofar as appealed from, is affirmed.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

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, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

For the reasons stated in Burke Physical Therapy, P.C., as Assignee of Brown, Wildex v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2025 NY Slip Op _____ [appeal No. 2023-1091 K C], decided herewith), the order, insofar as appealed from, is affirmed.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint with prejudice.

ORDERED that the order, insofar as appealed from, is reversed, without costs, defendant’s cross-motion for summary judgment dismissing the complaint with prejudice is denied and, upon searching the record, the complaint is dismissed without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

Plaintiff argues on appeal that the order, insofar as appealed from, should be reversed and the matter remitted to the Civil Court for consideration of what plaintiff denominated as amended opposition to defendant’s cross-motion, which the court declined to consider. The court rejected that submission as an improper sur-reply. In the alternative, plaintiff argues that defendant’s cross-motion should be denied.

Contrary to plaintiff’s contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether [*2]plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [1]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 85 Misc 3d 130[A], 2025 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Plaintiff also argues that the instant action cannot be maintained, as collateral estoppel effect should be given to an order of the Supreme Court, Nassau County, denying defendant’s motion for summary judgment in a declaratory judgment action brought by defendant in that court. However, the denial of such a motion “has no preclusive effect on this case, as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Furthermore, nothing in the record supports plaintiff’s contention that it was improper for the Civil Court to decline to consider plaintiff’s amended opposition to defendant’s cross-motion, nor does plaintiff demonstrate that consideration of the amended opposition would warrant a different outcome.

However, at oral argument, defendant noted that the denial of claim form at issue in this case was issued more than 150 days after the issuance of the initial request for verification. Thus, that denial of claim form is a nullity and, upon searching the record, we conclude that the action is premature and the complaint should be dismissed without prejudice (see Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross-motion for summary judgment dismissing the complaint with prejudice is denied and, upon searching the record, the complaint is dismissed without prejudice.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.; op 72 Misc 3d 1215[A], 2021 NY Slip Op 50750[U] [2021]), dated July 13, 2021. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action and granted the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action are granted and the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action on the ground that plaintiff failed to appear for duly scheduled examinations under oath, and granted the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action.

For the reasons stated in MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U v Nationwide Ins. (— Misc 3d —, 2025 NY Slip Op ___ [Appeal No. 2021-478 K C], decided herewith), the order (72 Misc 3d 1215[A], 2021 NY Slip Op 50750[U] [Civ Ct, Kings County 2021]), insofar as appealed from, is reversed, the branches of defendant’s motion seeking [*2]summary judgment dismissing the first through fifth causes of action are granted and the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action are denied.

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51377[U] is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross-motion for summary judgment. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

ORDERED that the order is reversed, with $30 costs, 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 appeals from an order of the Civil Court which denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and granted plaintiff’s cross-motion for summary judgment.

Defendant demonstrated that a letter scheduling an initial EUO of plaintiff had been mailed before receipt of the claims at issue, and that defendant issued timely follow-up EUO scheduling requests after each failure to appear by plaintiff, thus tolling defendant’s time to pay or deny the claims (see Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant further established that plaintiff [*2]failed to appear for each of the scheduled EUOs, and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023], revg 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant’s motion should have been granted and plaintiff’s cross-motion denied.

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

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51378[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross-motion for summary judgment.

Defendant established prima facie that it timely mailed initial and follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also 11 NYCRR 65-3.8 [l]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023], revg 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant’s motion was properly granted and plaintiff’s cross-motion was properly denied.

Accordingly, the order is affirmed.

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51382[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Samuel A. Kamara and Michael Zeleznock of counsel), for respondent.

Appeal from an amended order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated May 11, 2023. The amended order, insofar as appealed from, granted the branch of defendant’s motion seeking an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the Department of Finance the undertaking deposited by defendant, and, sua sponte, directed plaintiff “to provide Defendant with [a] Satisfaction of Judgment upon receipt of full payment.”

ORDERED that, on the court’s own motion, so much of the notice of appeal as is from so much of the order as, sua sponte, directed plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment should be deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the amended order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the Department of Finance the undertaking deposited by defendant is denied, and so much of the order as, sua sponte, directed plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment is vacated.

In this action by a provider to recover assigned first-party no-fault benefits, a default judgment was entered in plaintiff’s favor on July 27, 2016 for the total sum of $3,623.62. On [*2]December 4, 2017, defendant’s motion seeking to vacate the default judgment was denied. Defendant appealed to this court from the December 4, 2017 order and, on January 25, 2018, defendant deposited the sum of $3,623.62 with the New York City Department of Finance (DOF) in connection with the appeal. By decision and order dated November 29, 2019, this court affirmed the order denying defendant’s motion to vacate the default judgment (GC Chiropractic, P.C. v Allstate Ins. Co., 65 Misc 3d 156[A], 2019 NY Slip Op 51954[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Defendant subsequently moved for, among other things, an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the DOF the undertaking deposited by defendant. After plaintiff opposed the motion, the Civil Court (Jill R. Epstein, J.), in an amended order dated May 11, 2023, “[p]ursuant to CPLR 2606, 2607 and 8010 . . . direct[ed] plaintiff to proceed to recover the undertaking from the Department of Finance and to provide Defendant with [a] Satisfaction of Judgment upon receipt of full payment.”

While no appeal as of right lies from the sua sponte portion of the order directing plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment, we deem the notice of appeal to be an application for leave to appeal from that portion of the order and grant plaintiff’s application (see CCA 1702 [c]).

Defendant’s contentions that the undertaking it deposited on January 25, 2018 tolled the accrual of interest, that the amount of the undertaking is sufficient to satisfy defendant’s debt, and that it is plaintiff’s burden to move to recover the undertaking lack merit. The deposit of money pursuant to CPLR 5519 in order to obtain a stay of execution of the judgment pending appeal does not toll the accrual of interest (see Purpura v Purpura, 261 AD2d 595; 597 [1999]; see also Wiederhorn v Merkin, 106 AD3d 416 [2013]; Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496 [2005]). We note that since no-fault interest continues to accrue until the judgment is satisfied (see Matter of Matra Bldg. Corp., 19 AD3d 496; see generally 11 NYCRR 65-3.9 [a]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]), the amount of the undertaking alone will be insufficient to satisfy the judgment.

Accordingly, the amended order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the Department of Finance the undertaking deposited by defendant is denied and so much of the order as, sua sponte, directed plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment is vacated.

BUGGS, J.P., TOUSSAINT and QUIÑONES, JJ., concur.