Decided on November 18, 2022

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

Decided on November 18, 2022

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

Decided on November 18, 2022

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

[*1]

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak and Maksim Leyvi of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla appeal from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered November 13, 2019. The judgment, upon an order of the same court entered October 9, 2019, granting that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, inter alia, declared that the plaintiffs have no duty to provide coverage for the subject no-fault claims.

Ordered that the judgment is affirmed, with costs.

In April 2017 and June 2017, within days of the defendants Jerry Noland and Franklin Blasco procuring automobile insurance policies, the vehicles for which the policies were issued were involved in two separate automobile collisions when they each came into contact with two separate taxicabs. In or around April 2018, the plaintiffs, National General Insurance Online, Inc., and National General Insurance Company, commenced this action against Noland, Blasco and other individuals involved in the collisions, as well as, among others, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla (hereinafter collectively the medical provider defendants), alleging, inter alia, that the collisions were intentional. After the Supreme Court granted the plaintiffs’ motion for leave to enter a default judgment against, among others, the individuals involved in the two collisions, the plaintiffs moved, among other things, for summary judgment on the complaint insofar as asserted against the medical provider defendants, arguing, inter alia, that they are not obligated to pay no-fault claims submitted to them by the medical provider defendants in connection with the collisions. In an order entered October 9, 2019, the Supreme Court granted that branch of the motion. A judgment was entered November 13, 2019. The medical provider defendants appeal. We affirm.

[*2] The medical provider defendants failed to sustain their burden of demonstrating that the branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against them was premature (see CPLR 3212 [f]; Shah v MTA Bus Co., 201 AD3d 833 [2022]). Further, an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]), and here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating, through admissible evidence, that the subject collisions were intentionally caused or staged (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2003]; cf. Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691 [2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795 [2015]). In opposition, the medical provider defendants failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged. Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the medical provider defendants. Barros, J.P., Brathwaite Nelson, Chambers and Wan, JJ., concur.

Decided on October 24, 2022

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 5, 2018. The order, in effect, denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered March 17, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 17, 2017 is granted.

This action by a provider to recover assigned first-party no-fault benefits for a claim submitted to defendant on or about February 9, 1999, arising from an accident that occurred on September 24, 1998, was settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 17, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple 2% per month rate. Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from an order of the Civil Court which, in effect, denied its motion.

Plaintiff correctly argues that the claim involved herein is governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest (see 11 NYCRR 65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]). Consequently, plaintiff’s motion should have been granted. We note that, contrary to the statement of the Civil Court, postjudgment interest in a no-fault action [*2]is governed by Insurance Law § 5106 and its implementing regulations, not the CPLR (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 17, 2017 is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

Marshall & Marshall, PLLC (Frank D’Esposito and David Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 6, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC Insurance Company) appeals from an order of the District Court dated July 1, 2021 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

Defendant established its prima facie entitlement to summary judgment by submitting evidence demonstrating that it timely denied plaintiff’s claim submitted in January 2018 for no-fault benefits, on the ground of untimeliness, as the claim was submitted more than 45 days after the date services were rendered (see 11 NYCRR 65-1.1) and that its denial informed plaintiff that it could excuse the delay if plaintiff provided “reasonable justification” for the late [*2]submission (see 11 NYCRR 65-3.3 [e]; Stand-Up MRI of the Bronx, P.C. v MVAIC Ins. Co., 76 Misc 3d 128[A], 2022 NY Slip Op 50789[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Schottenstein Pain & Neuro, PLLC v MVAIC, 72 Misc 3d 131[A], 2021 NY Slip Op 50643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether it provided defendant with a reasonable justification for its untimely submission of the claim, as plaintiff failed to explain why, after learning that there was no insurance covering the accident, it first submitted the claim to the assignor’s personal health insurer instead of MVAIC, and why it took months before it first purportedly sent the claim to MVAIC (see Stand-Up MRI of the Bronx, P.C., 2022 NY Slip Op 50789[U]; Excel Surgery Ctr., LLC v MVAIC, 68 Misc 3d 134[A], 2020 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Mount Sinai Hosp. of Queens, 2014 NY Slip Op 50780[U]; see also Schottenstein Pain & Neuro, PLLC, 2021 NY Slip Op 50643[U]).

Plaintiff also failed to raise a triable issue of fact as to whether it actually first submitted the claim to MVAIC on October 17, 2017, the basis for plaintiff’s argument that defendant’s February 5, 2018 denial was untimely. To establish this mailing, plaintiff neither presented an affidavit by one with personal knowledge of the mailing nor provided sufficient practices and procedures of mailing, but rather relied on a certificate of mailing, which, under the circumstances presented, was insufficient to fill in the gaps in plaintiff’s proof of mailing.

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.

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.

Index No. CV-721236-19/QU

Plaintiff’s Counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Counsel:
Hollander Legal Group
105 Maxess Road Suite S128
Melville, NY 11747

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion on its claim:

Papers        & nbsp;           & nbsp;           & nbsp;           & nbsp;        Numbered
Defendant’s Notice of Motion and Affirmation in Support dated September 17, 2020 (“Motion”) and electronically filed with the court on September 21, 2020. 1
Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated December 13, 2021 (“Cross-Motion”) and electronically filed with the court on the same date. 2
Defendant’s Affirmation in Opposition to Cross-Motion dated December 13, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on the same date. 3

In a summons and complaint filed on September 23, 2019, Plaintiff sued Defendant insurance company to recover $385.63 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Jackson on July 10, 2018, plus attorneys’ fees and [*2]statutory interest (see Motion, Aff. of Volpe, Ex. A). Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“). Plaintiff cross-moved for summary judgment on its claims against Defendant. An oral argument and settlement conference by both parties was conducted by this Court.

III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions…” (CPLR 3212 [b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “A [party] moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

It is well established that insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]).

In opposition to Defendant’s motion in its Cross-Motion, Plaintiff first argued that Defendant’s request for an EUO was untimely. In the Opposition to Cross-Motion, Defendant merely stated in conclusory terms that it timely requested the EUOs. “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5[b]). In our instant matter, Defendant’s counsel first requested an EUO of Plaintiff in a letter dated September 21, 2018 (see Motion, [*3]Volpe Aff., Ex. G). Since Defendant’s denial of claim forms, dated February 13, 2019, indicated that Defendant received Plaintiff’s bills on August 27, 2018, Defendant’s first EUO request was untimely because it was made 25 days after receipt of the bill (Eagle Surgical Supply, Inc. v Allstate Indem. Co., 41 Misc 3d 141[A], 2013 NY Slip Op 52012[U] *2 [App Term 2d Dept 2013], see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [2d Dept 1999]). While Defendant presented a delay letter dated September 6, 2018, it did not suffice to toll the 30 days because it did not request verification from Plaintiff, but only indicated that verification would be sought (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 17; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]).

Plaintiff also argued that Defendant was required to pay or deny the claims after Plaintiff failed to attend the second EUO. Defendant maintained that payment or denial of the claims was premature until Plaintiff provided the requested verification. “[A]n insurer shall not issue a denial of claim form (NYS form NF-10) prior to its receipt of verification of all the relevant information requested pursuant to 65-3.5 and 65-3.6 of this Subpart (e.g. medical reports, wage verification, etc.)” (11 NYCRR 65-3.8[b][3]). However, “[t]his subdivision shall not apply to a prescribed form (NF-Form) as set forth in Appendix 13 of this Title, medical examination request, or examination under oath request” (id.) (emphasis added). Therefore, the outstanding verification of Plaintiff’s EUO did not bar Defendant from denying the claims. The failure to attend two scheduled EUOs has been held a sufficient basis for Defendant to deny a No-Fault claim (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U] *2 [App Term 2d Dept 2019]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 129[A], 2016 NY Slip Op 50928[U] *1-2 [App Term 2d Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] *1 [App Term 2d Dept 2015]).

In our instant case, Defendant scheduled two additional EUOs after Plaintiff objected to them and denied the claim after Plaintiff’s nonappearance at the fourth scheduled EUO. In cases involving a failure to appear for an EUO, “the 30 days to pay or deny the claim begins to run on the date of the second failure to appear — the date that the insurer is permitted to conclude that there was a failure to comply with this condition precedent to coverage” (Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16, 18 [App Term 2d Dept 2019], see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17, 19 [App Term 2d Dept 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] *1-2 [App Term 2d Dept 2020]). Thus, Defendant’s denial of the claim on February 13, 2019, well beyond 30 days from Defendant’s receipt of the claim on August 27, 2018, was untimely (Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U] *2, 69 Misc 3d 133 [App Term 2d Dept 2020]). The requirement to deny a No-Fault claim after nonappearance at a second EUO would not apply if the additional scheduled EUOs pertained to claims other than the first and second scheduled EUOs (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d at 20). In contrast, all four EUOs Defendant scheduled in this case related to the same claims. While Defendant argued that our instant case was distinguishable from Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226[U], 69 Misc 3d 133 [App Term [*4]2d Dept 2020]) because Plaintiff objected to the EUOs and Defendant explained the reasons for scheduling the additional EUOs beyond the first two, the Appellate Term did not indicate that either of those factual distinctions impacted its holding in that case, Island Life Chiropractic Pain Care, PLLC v 21 st Century Ins. Co. (74 Misc 3d at 19) or Chapa Prods. Corp. v MVAIC (66 Misc 3d at 18), all of which clearly held that the time to pay or deny ran from the non-appearance at the second scheduled EUO. Finally, while a timely EUO request tolls Defendant’s time to pay or deny a No-Fault claim (Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d at 19), as discussed above, Defendant’s EUO requests were not timely. Defendant’s motion for summary judgement dismissing Plaintiff’s complaint is denied.

Regarding the Cross-Motion, Plaintiff pointed to its bills and Defendant’s denial of claim forms which indicated that Defendant received Plaintiff’s bills totaling $385.63 on August 27, 2018 (see Motion, Volpe Aff., Ex. E). A denial of claim form, however, is insufficient to establish a medical provider’s prima facie case but suffices to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). As discussed above, since Defendant was required under the circumstances to pay or deny the claim within 30 days of Plaintiff’s failure to attend the second scheduled EUO on November 30, 2018 (see Motion, Volpe Aff., Ex. J), Defendant’s denial on February 13, 2019 was untimely. Therefore, Plaintiff has established its prima facie case demonstrating entitlement to summary judgment on its claim.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied; and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment is granted; and it is further

ORDERED that the Clerk shall enter a judgment in Plaintiff’s favor against Defendant in the amount of $385.63 together with statutory interest from August 27, 2018 and statutory attorneys’ fees.

This constitutes the Decision and Order of the court.

Index No. CV-720860-19/QU

Petitioner’s counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Respondent’s counsel:
Rubin, Fiorella, Friedman & Mercante, LLP
630 Third Avenue, 3rd Floor and 11th Floor
New York, NY 10017

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

II. Background

In a summons and complaint filed September 19, 2019, in Queens Civil Court, Plaintiff sued Defendant insurance company to recover $1,404.74 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Michael for injuries sustained in an automobile accident on November 12, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Gjoni, Ex. A). In a summons and complaint filed January 30, 2020, Defendant commenced a declaratory judgment action in Supreme Court, New York County against Plaintiff and Michael among others who filed No-Fault benefit claims (“Supreme Court Action“) (State [*2]Farm Mutual Ins. Co. v Best Hands On Phys. Therapy, et al., Sup. Ct. NY County, Index No. 720860/19) (see Motion, Gjoni Aff., Ex. B). In an order entered March 22, 2021, in the Supreme Court Action, Supreme Court granted Defendant a default judgment against Plaintiff and Michale among other No-Fault claimants holding that Defendant owed no duty to pay No-Fault claims arising from the accident on November 12, 2018 (see Motion, Gjoni Aff., Ex. D). In our instant matter, Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff’s action was barred by res judicata and collateral estoppel. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]).

The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]) based on the prior Supreme Court Action. Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s default in the Supreme Court Action has not been vacated (Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Inasmuch as res judicata furnishes a basis for granting Defendant summary judgment dismissing Plaintiff’s complaint, there is no need to address whether collateral estoppel also bars Plaintiff’s action as Defendant contended.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted and Plaintiff’s [*3]complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Index No. CV-109640-02/QU

Plaintiff’s counsel:
The Law Offices of Shay Shailesh Deshpande, LLC
2626 East 14th Street, Suite 205
Brooklyn, NY 11235

Defendant’s counsel:
McDonnell Adels & Klestzick, PLLC
401 Franklin Avenue, Suite 200
Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Defendant’s Notice of Motion and Affirmation (“Motion”) filed with the court on November 8, 2017. 1
Plaintiff’s Affirmation in Opposition (“Opposition”) to the Motion. 2
Defendant’s Reply Affirmation (“Reply”) to the Opposition. 3
Civil Court, Queens County Decision and Order dated May 31, 2018. 4
Appellate Term for the 2nd, 11th and 13th Judicial Districts’ Decision and Order dated August 14, 2020. 5

II. Background

In a summons and complaint filed November 12, 2002, Plaintiff sued Defendant insurance company to recover unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Rytchagova, plus attorneys’ fees and statutory interest. The action was marked “inactive” as of June 2, 2007. Defendant moved to dismiss Plaintiff’s complaint as abandoned (CPLR 3404) or as barred by laches and to stay interest, which Plaintiff opposed. In an order entered May 29, 2018 (“Prior Order“), the court (H., J.) granted Defendant’s Motion on the ground it was barred by laches and dismissed Plaintiff’s complaint with prejudice, denied the stay of interest as moot, and noted that CPLR 3404 was inapplicable without ruling on that ground. By notice of appeal filed July 27, 2018, Plaintiff appealed the Prior Order. In a decision and order dated August 14, 2020, the Appellate Term for the 2nd, 11th and 13th Judicial Districts reversed the Prior Order and remitted the matter to Civil Court to determine the remaining branches of Defendant’s Motion.

III. Discussion and Decision

The branches of Defendant’s Motion remaining after the remand by the Appellate Term sought dismissal on the ground that the Plaintiff abandoned the action by failing to restore the action since it was marked disposed on June 2, 2007, and alternatively, sought to stay interest from June 2, 2007, the date the matter was marked off, until the date the matter was restored.

CPLR 3404 provides:

A case in the supreme court or a county court marked “off” or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

It is well established that CPLR 3404 does not apply to actions in New York City Civil Court (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2d Dept 2007]; Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 50 Misc 3d 144[A], 2016 NY Slip Op 50255[U] *1 [App Term 2d Dept 2016]; Halpern v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52321[U] * 2 [App Term 2d Dept 2012]; Small v Metropolitan Prop. & Cas. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50760[U] * 1 [App Term 2d Dept 2012]). Even if CPLR 3404 were to be applied in New York City Civil Court, since CPLR 3404 does not apply to pre-note of issue actions (Guillebeaux v Parrott, 188 AD3d 1017, 1017 [2d Dept 2020]; Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393 [2d Dept 2019]; Kapnisakis v Woo, 114 AD3d 729, 730 [2d Dept 2014]; Arroyo v Board of Educ. Of City of NY, 110 AD3d 17, 19 [2d Dept 2013]), CPLR 3404 furnished no basis to dismiss as no party had filed a notice of trial, which is the Civil Court equivalent of the note of issue (Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]; Richman v Obiakor Obstetrics & [*2]Gynecology, P.C., 32 Misc 3d 135[A], 2011 NY Slip Op 51461[U] *1 [App Term 2d Dept 2011]). Therefore, this Court denies Defendant’s motion to dismiss pursuant to CPLR 3404.

In its Reply, Defendant also contended that Plaintiff’s complaint must be dismissed pursuant to 22 NYCRR § 208.14[c], which provides that “[a]ctions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken.” Here, Defendant’s arguments regarding 22 N.Y.C.R.R. § 208.14[c] were improperly raised for the first time in its Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, 197 AD3d 625, 627 [2d Dept 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). Although Plaintiff did not address this contention in its improper sur-reply, in any event, 22 N.Y.C.R.R.§ 208.14[c] “makes no provision for dismissing an action for neglect to prosecute” (Chavez v 407 Seventh Ave. Corp., 39 AD3d at 456; Hillside Place, LLC v Shahid, 55 Misc 3d 101, 103 [App Term 2d Dept 2017]; Marone v Bevelaqua, 36 Misc 3d 140[A], 2012 NY Slip Op 51484[U] *2 [App Term 2d Dept 2012]), which was what Defendant argued here. Despite the inapplicability of CPLR 3404 and 22 N.Y.C.R.R. § 208.14[c], Defendant is not without remedy (see Guillebeaux v Parrott, 188 AD3d at 1018; Onewest Bank, FSB v Kaur, 172 AD3d at 1393; General Assur. Co v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]).

Defendant alternatively argued that interest accrual should be stayed from the time the case was marked off until the time it is restored. “If an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (11 NYCRR § 65-3.9[d]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 204 n. 2 [2d Dept 2009]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] *1 [App Term 2d Dept 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term 2d Dept 2014]). Although Plaintiff commenced the action on November 12, 2002, the only activity in the action was Plaintiff’s motion and Defendant’s cross-motion for summary judgment, which were both denied in an order (Butler, J.) entered September 9, 2004, Defendant’s instant Motion to dismiss, which was filed with the court on November 8, 2017 and the subsequent appellate practice culminating in the order of the Appellate Term dated August 14, 2020.

As noted above, Plaintiff has not filed a notice of trial. Although the case was “inactive” as of June 2, 2007, a disposed marking of a pre-note of issue case is not permitted (Bilkho v Roosevelt Sq., LLC, 157 AD3d 849, 850 [2d Dept 2018]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2d Dept 2005], see Arroyo v Board of Educ. Of City of NY, 110 AD3d at 21). Here, the disposed marking does not prevent Plaintiff from prosecuting the case because undoing such marking does not require a motion to restore (Arroyo v Board of Educ. of City of NY, 110 AD3d at 20; General Assur. Co. v Lachmenar, 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]). Plaintiff should not be rewarded for the years of inactivity in the court proceeding “by receiving a windfall of interest” (Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 2016 NY Slip Op 51240[U] *1; V.S. Medical Services, P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] *2 [App Term 2d Dept 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89). Therefore, this Court grants this branch of Defendant’s motion and in the event that Plaintiff prevails on its claim, fixes the date interest accrues to such date as a notice of trial is filed (see V.S. Medical Services, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760[U] * 2; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss on the ground that Plaintiff abandoned the action is denied; and it is further

ORDERED that Defendant’s motion to fix accrual of interest is granted; and it is further

ORDERED that in the event Plaintiff prevails on its claims, interest shall accrue from the filing date of the notice of trial.

This constitutes the Decision and Order of this Court.

______________________________
HON. WENDY CHANGYONG LI, J.C.C.