Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 4, 2013. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on July 16, 2010. Shortly before plaintiff brought this action, defendant had commenced a declaratory judgment action in the Supreme Court, New York County, naming, among others, various medical providers, including plaintiff herein, and the three assignors herein, and seeking a declaration that defendant owed no duty to pay first-party no-fault claims with respect to the July 16, 2010 accident. By order entered December 20, 2011, the Supreme Court granted, on default, defendant’s motion for the entry of a default declaratory judgment against, insofar as is relevant, Infinity Chiropractic Health, P.C., Lucky Johnson and Demetrius McClammy, but not as against Lawrence Jones, individually.

Defendant subsequently moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrines of res judicata and collateral estoppel by virtue of the Supreme Court order in the declaratory judgment action. By order entered October 4, 2013, the Civil Court granted the branches of defendant’s motion seeking dismissal of the first through fourth causes of action, which pertained to assignors Demetrius McClammy and Lucky Johnson. However, insofar as is relevant to this appeal, the Civil Court denied the branches of defendant’s unopposed motion seeking summary judgment dismissing the fifth through eighth causes of action, which causes of action related to services that plaintiff had rendered to assignor Lawrence Jones, on the ground that the order in the declaratory judgment action had not been granted as against Lawrence Jones, individually. Defendant appeals from so much of the order as denied the branches of its motion seeking summary judgment dismissing the fifth through eighth causes of action.

The doctrine of res judicata is designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 772 [5th ed]). Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which was raised or could have been raised in the prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304, 306-207 [1929]). Furthermore, the doctrine of res judicata is applicable to an order or judgment taken by default which has not been vacated (see Matter of Hunter, 4 NY3d at 269; Barbieri v Bridge Funding, 5 AD3d 414, 415 [2004]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff was named and served in the declaratory judgment and ultimately defaulted therein. As plaintiff’s right to recover as an assignee of Lawrence Jones was fully litigated in the Supreme Court action, notwithstanding defendant’s admitted failure to serve Lawrence Jones individually in that action, and notwithstanding that the declaratory judgment made no determination as against Lawrence Jones, individually, the order in the declaratory judgment action was a conclusive final determination barring plaintiff from recovering for any services it rendered to Lawrence Jones arising from the July 16, 2010 accident. Consequently, plaintiff’s claims underlying the fifth through eighth causes of action are barred (see Uffer v Travelers Cos., Inc., 88 AD3d 690, 691 [2011]; EBM Med. Health Care, P.C., 38 Misc 3d at 3).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action are granted.

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 21, 2010. The judgment, entered pursuant to a July 1, 2010 order of the same court granting defendant’s CPLR 3126 motion, dismissed the complaint.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated July 1, 2010 is deemed a premature notice of appeal from the judgment entered September 21, 2010 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation pursuant to which plaintiff agreed to provide defendant with legible copies of the claims at issue or be precluded from offering such evidence at trial. Thereafter, defendant moved, among other things, to compel plaintiff to provide legible copies of the claims. By order entered October 9, 2009 (Lewis L. Douglass, J.H.O.), plaintiff was required to serve defendant with legible copies of the claim forms at issue, or provide defendant with an affidavit from plaintiff setting forth why plaintiff was unable to do so, within 60 days of the date of the order, or be precluded from offering “such evidence” should a judge find the explanation set forth in the affidavit from plaintiff to be insufficient. After plaintiff failed to provide defendant with either legible copies of the claim forms or an affidavit setting forth why plaintiff was unable to provide same, defendant moved, pursuant to CPLR 3126, to preclude plaintiff and to dismiss the complaint, asserting that plaintiff had failed to timely comply with the order; that, as a consequence, plaintiff was precluded from offering any evidence; and that, therefore, plaintiff could not establish its prima facie case. In opposition, a representative of plaintiff explained, in an affidavit, why plaintiff was unable to provide legible copies of the claim forms, without offering any explanation for its failure to comply with the 60-day requirement of the order, or indicating when, or if, plaintiff had previously served that affidavit upon defendant. By order entered July 1, 2010, the Civil Court granted defendant’s motion. A judgment was entered pursuant to the order on September 21, 2010.

The order entered October 9, 2009 unambigously provided that plaintiff would be precluded from using the claim forms at issue if plaintiff failed to comply with the stipulation. The record fails to establish that, within the 60-day time period set forth in the stipulation, plaintiff either produced legible copies of the claim forms or provided an affidavit setting forth [*2]why it could not provide legible copies of the claim forms. We note that the affidavit attached to plaintiff’s opposition papers was served upon defendant over six months beyond the time permitted by the order. Consequently, we find no basis to reverse the judgment.

Accordingly, the judgment is affirmed.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 21, 2016

APPEARANCES OF COUNSEL

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

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondent.

Ordered that the order is modified by vacating so much thereof as denied the branch of defendant’s motion seeking the entry of a satisfaction of judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of that branch of defendant’s motion in accordance with the decision herein.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by virtue of a November 21, 2011 judgment which had been entered against plaintiff in a declaratory judgment action in the Supreme Court, Nassau County. Plaintiff cross-moved for summary judgment. By order dated April 23, 2014, the Civil Court (Robin S. Garson, J.) denied defendant’s motion and granted plaintiff’s cross motion, directing plaintiff to enter judgment in the principal sum of $556.78, plus statutory interest and attorney’s fees. In July 2014, plaintiff submitted a proposed judgment in the total sum of $988.34. A judgment was ultimately entered on September 19, 2014 in the sum of $993.34.

In August 2014, prior to the entry of judgment in this action, defendant moved for summary judgment dismissing the complaint, as the amount which was due and owing had been satisfied, or, in the alternative, in the event that a judgment had been entered while defendant’s motion was pending, for an order granting it a satisfaction of such entered judgment, pursuant to CPLR “5020 (c),”^[FN*] and plaintiff opposed the motion. By order entered April 23, 2015, the Civil Court denied defendant’s{**54 Misc 3d at 37} motion in its entirety on the ground that it was an improper successive motion for summary judgment.

Although defendant’s second motion sought summary judgment dismissing the complaint, defendant sought such relief only in the event that no judgment had been entered while its motion was pending. Since a judgment had been entered on September 19, 2014, defendant’s request for primary relief in the form of summary judgment became academic, and, thus, the branch of defendant’s motion seeking the alternative relief requested, i.e., for an order, pursuant to CPLR 5021 (a) (2), directing the entry of a satisfaction of judgment, became operative. However, in denying defendant’s motion in its entirety, the Civil Court did not consider the merits of the branch of defendant’s motion seeking the alternative relief of the entry of a satisfaction of judgment. Consequently, the matter is remitted to the Civil Court for a determination thereof.

Accordingly, the order is modified by vacating so much thereof as denied the branch of defendant’s motion seeking the entry of a satisfaction of judgment, and the matter is remitted to the Civil Court for a new determination of that branch of defendant’s motion.

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

Footnotes

Footnote *:In the appellate brief, defendant states that it had made a “scrivener’s error” in misciting the applicable CPLR provision, and had actually sought relief under CPLR 5021 (a) (2).

Decided on October 19, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered April 1, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Carol R. Feinman, J.), entered April 1, 2015, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to adequately state the basis of their recollection, some three years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on October 19, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered July 6, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered July 6, 2015, reversed, with $10 costs, and defendant’s motion denied.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to show that the scheduling of the IMEs complied with the procedures and time frames set forth in Insurance Department Regulations (11 NYCRR) § 65-3.5(d); see American Tr. Ins. Co. v Vance, 131 AD3d 849 [2015]; American Tr. Ins. Co. v Longevity, 131 AD3d 841 [2015]; Acupuncture, Approach, P.C. v Allstate Ins. Co., 46 Misc 3d 151[A], 2015 NY Slip Op 50318[U] [App Term, 1st Dept. 2015]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests. Although this issue was raised for the first time on appeal, it presents a question of law which this Court can review (see American Tr. Ins. Co. v Longevity, 131 AD3d at 841-842).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Civil Court of the City of New York, Queens County, October 17, 2016

APPEARANCES OF COUNSEL

Kim, Patterson & Sciarrino, P.C., Bayside, for defendants.

Serpe, Andree, & Kaufman, Huntington, for plaintiff.

Defendants’ motion pursuant to CPLR 3211 (a) (1) and (5){**54 Misc 3d at 346} dismissing plaintiff’s complaint and plaintiff’s cross motion for sanctions are decided as follows:

Plaintiff commences this subrogation action to recover $15,200 in additional personal injury protection benefits (APIP) paid to plaintiff’s subrogor. Prior to the commencement of this action a workers’ compensation hearing was held on November 24, 2008 determining that Kareem Atkins, the claimant, was in the course of employment with subrogor, Darci Plumbing Co., Inc., and was awarded basic economic loss as a result of an auto accident which occurred on March 17, 2008. Defendants now move to dismiss the complaint pursuant to CPLR 3211 (a) (1) on the ground that defendants’ defense is founded upon documentary evidence and CPLR 3211 (a) (5) on the ground that plaintiff’s cause of action cannot be maintained because of collateral estoppel and res judicata. Plaintiff also cross-moves for sanctions against the defendants pursuant to CPLR 8303-a for frivolous and unethical motion practice.

In support of the motion defendants submit the decision of the Workers’ Compensation Board awarding claimant, who is plaintiff’s subrogor’s employee, basic economic loss benefits as a result of the car accident of March 17, 2008. Defendants argue that the workers’ compensation benefits were the exclusive source of coverage for first-party benefits. Defendants also claim that the workers’ compensation decision was res judicata. Plaintiff subrogee claims in opposition that it paid APIP to the claimant, which was in addition to the statutory basic economic loss paid by the workers’ compensation award and therefore its right to subrogate these additional payments was reserved.

New York’s No-Fault Law requires that an owner of a vehicle has insurance coverage providing first-party benefits consisting of reimbursement for basic economic loss (health expenses, loss of earnings and other reasonable and necessary expenses) to the extent specified by statute. Where workers’ compensation insurance coverage exists for an injured motorist, the workers’ compensation insurer must pay the injured motorist’s basic economic loss up to $50,000 in lieu of statutory no-fault benefits. (Insurance Law §§ 5102 [a], [b]; 5103 [a].) There is no dispute in this matter that workers’ compensation was required to pay the basic economic loss for the accident. However, in this matter plaintiff subrogee paid APIP to claimant pursuant to its contract of insurance with subrogor, claimant’s employer. The issue at bar is whether APIP payments are synonymous{**54 Misc 3d at 347} with the statutory basic economic loss benefit or a contractual benefit in addition to the statutory basic economic loss benefit.

11 NYCRR 65-1.3 defines APIP benefits as:

“Additional first-party benefits are payments equal to extended economic loss reduced by: . . .

“(b) amounts recovered or recoverable on account of personal injury to an eligible injured person under State or Federal laws providing . . . workers’ compensation benefits . . . which amounts have not been applied to reduce first-party benefits recovered or recoverable under basic economic loss.”

Since an insured’s subrogation rights with regard to payment of APIP benefits are equitable rather than statutory in nature, they exist under common law. (Allstate Ins. Co. v Stein, 1 NY3d 416 [2004].) The workers’ compensation award in this matter may be distinguishable from the APIP benefits. Therefore the workers’ compensation award was not res judicata and plaintiff is not precluded from asserting its subrogation rights for any amounts paid in addition to the statutory basic economic loss benefits paid by workers’ compensation in lieu of first-party benefits. Accordingly, defendants’ motion to dismiss is denied in its entirety.

Plaintiff’s cross motion seeking sanctions against the defendants is further denied.

Decided on October 13, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered March 4, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

For the reasons stated in TAM Med. Supply Corp., as Assignee of Melisa Abdoul v National Liability & Fire Ins. Co. (____ Misc 3d _____, 2016 NY Slip Op ______ [appeal No. 2014-635 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decided on October 13, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, defendant demonstrated, prima facie, that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit by plaintiff’s owner was sufficient to give rise to a presumption that the requested verification had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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

Decided on October 13, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered January 13, 2014. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered January 13, 2014, the Civil Court granted defendant’s motion.

As plaintiff argues, defendant’s moving papers failed to establish that the first EUO scheduling letter defendant sent to plaintiff was timely, as defendant stated that the letter was sent 35 days after defendant had received the claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant failed to demonstrate that it had properly and timely denied the claim based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006] [appearance at an EUO is a condition precedent to coverage]).

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

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