Decided on January 5, 2017

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2013, deemed from a judgment of the same court, entered November 25, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the November 1, 2013 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,715.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 1, 2013 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. Defendant appeals from an order of the Civil Court entered November 1, 2013, which granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered pursuant to the November 1, 2013 order, awarding plaintiff the principal sum of $1,715, from which the appeal is deemed to have been taken (see CPLR 5512 [a]).

For the reasons stated in Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (50 Misc 3d 147[A], 2016 NY Slip Op 50319[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the judgment is reversed, the order entered November 1, 2013 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order, insofar as appealed from and as limited by the brief, denied 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the rescission of the automobile insurance policy. The Civil Court, by order dated July 30, 2014, denied both motions finding, pursuant to CPLR 3212 (g), that both parties had established their prima facie cases and that the only triable issue of fact is whether the assignor had the intent to misrepresent on his insurance application.

On appeal, defendant contends that Florida law controls and, pursuant to said law, an insurer does not have to prove intent to misrepresent in order to void a policy ab initio; rather, an insurer only has to show that the policy was validly rescinded pursuant to the laws of Florida.

At the time of the accident at issue, which occurred in New York, the vehicle was insured by defendant under a Florida automobile insurance policy, and was being driven by the policyholder, plaintiff’s assignor. After defendant’s investigation revealed that, at the time the insured applied for automobile insurance, plaintiff’s assignor did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

Inasmuch as defendant’s cross motion papers failed to demonstrate that a rescission notice was sent to the insured, or that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant failed to show, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire [*2]and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint was properly denied.

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

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

[*1]

Law Office of Gregory A. Goodman, P.C., Hauppauge (Gregory A. Goodman of counsel), for appellant.

Law Offices of Daniel J. Tucker, Brooklyn (Joshua M. Goldberg of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 11, 2016, which granted plaintiff’s motion for a default judgment pursuant to CPLR 3215 declaring that it owes no duty to pay any pending or future no-fault claims arising out of a September 24, 2014 motor vehicle accident, and denied the cross motion of defendant Innovative Medical Heights, P.C. (Innovative Medical) for summary judgment dismissing the complaint as against it and for attorneys’ fees, unanimously affirmed, without costs.

Supreme Court properly granted plaintiff’s motion for a default judgment. The record demonstrates that plaintiff submitted proof that it served Innovative Medical with the summons and complaint, Innovative Medical does not deny that it was received, and Innovative Medical failed to set forth a reasonable excuse as to why it failed to timely answer the complaint (see CPLR 3215 [a], [f]). Innovative Medical’s claim that plaintiff accepted its untimely answer by failing to reject it fails, because plaintiff moved for the default judgment within 13 days of its receipt (see e.g. Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005]).

Furthermore, Innovative Medical’s cross motion was properly denied. Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]). Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.

Decided on December 29, 2016

Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered July 30, 2015, as denied their cross motion for summary judgment on the issue of medical necessity.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered July 30, 2015, affirmed, with $10 costs.

The issue of medical necessity was not fully litigated or decided in the prior first-party no-fault action, and thus the doctrine of collateral estoppel does not bar defendant-insurer from raising the medical necessity defense in this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; cf. Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). On the merits, we agree with Civil Court that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the manipulation under anesthesia procedure underlying plaintiff’s claims (see Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50565[U] [App Term, 1st Dept 2015]; Doctor Richard Med., P.C. v Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Russell Friedman & Associates, LLP, Lake Success (Dara C. Goodman of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 6, 2016, which denied petitioner’s application to vacate a master arbitration award entitling respondent to no-fault insurance benefits, and granted respondent’s cross motion to confirm the award, unanimously affirmed, with costs.

Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (CPLR 7511 [b]). The decision of the Master Arbitrator in affirming the arbitration award had evidentiary support, a rational basis, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). The original arbitrator properly acted within her discretionary authority to refuse to entertain any late submissions proffered by petitioner (see 11 NYCRR 65-4.2 [b] [3]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2d Dept 2009]). Concur—Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels and Feinman, JJ.

Decided on December 16, 2016

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 5, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,839.34.

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

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the MRIs of plaintiff’s assignor’s cervical and thoracic spines. The only witness was defendant’s doctor, a board-certified orthopedic surgeon with 30 years of experience, who also “write[s] papers, and give[s] lectures.” He testified that he was the doctor who had prepared the peer review reports concerning the two MRIs at issue in this action and found that the MRIs were not medically necessary. The peer review reports were admitted into evidence, over plaintiff’s objection, but the underlying medical records were not admitted into evidence. At the close of the doctor’s testimony, each side moved for a directed verdict. The Civil Court, finding that defendant’s medical witness was not qualified as an expert and, in any event, that the witness’s testimony was not credible, awarded judgment in favor of plaintiff in the principal sum of $1,839.34.

The fact that defendant’s witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court’s determination, to the witness’s competency to testify as an expert (see Gordon v Tishman Constr. Corp., 264 AD2d 499, 502 [1999]; Smith v City of New York, 238 AD2d 500, 500-501 [1997]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55, 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, we find no basis to disturb the Civil Court’s finding that the witness’s testimony was not credible.

Accordingly, the judgment is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered February 25, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for supplies it provided to its assignor for injuries he had sustained in a motor vehicle accident on February 27, 2012, to which claim defendant assigned claim number 1126518. Prior to the commencement of this action, defendant instituted a declaratory judgment action in the Supreme Court, New York County, against plaintiff’s assignor and various medical providers, including plaintiff herein. In an order dated April 25, 2014, the Supreme Court granted, on default, the motion therein for a declaratory judgment, which order stated, among other things, “that, for the purpose of claims submitted by GABRIEL SANFORD, ACTIVE CARE MEDICAL SUPPLY CORP. . . . , defendant GABRIEL SANFORD is not an eligible injured person entitled to no-fault benefits under AMERICAN COMMERCE INSURANCE COMPANY insurance policy ACPA-000653448, Claim No.: 1126518, and [American Commerce Insurance Company] is not obligated to pay for claims seeking no-fault benefits for services or goods provided to GABRIEL SANFORD under this claim number.”

In July 2014, defendant, among other things, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the April 25, 2014 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered February 25, 2015, the Civil Court denied defendant’s motion without prejudice to renewal upon proper papers. The court found that it could not consider the Supreme Court declaratory judgment order annexed to the moving papers because defendant had not included a notice of entry for that order.

Contrary to the determination of the Civil Court, it should have reviewed and considered the Supreme Court declaratory judgment order even though defendant did not provide a notice of entry for it “in view of the binding and conclusive effect of the order” (Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc 3d 143[A], 2014 NY Slip Op 51324[U], *1 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A review of the record establishes that the instant action is barred under the doctrine of res judicata by virtue of the Supreme Court order dated April 25, 2014 (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order issued by the Supreme Court in the declaratory judgment action (see Schuylkill 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]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

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

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