500177/16

Attorneys for Plaintiff
Bruno, Gerbino & Soriano., P.C.
Richard C. Aitken
445 Broad Hollow Road, Suite 220
Melville, New York 11747
(631) 390-0010

Attorneys for Laurentia St. Rose
Monfort, Healy, McGuire & Salley
840 Franklin Avenue
P.O. Box 7677
Garden City, New York 11530
(516) 747-4082

Pro Se
Tiesha Thompson

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff State Farm Mutual Automobile Insurance Company (hereinafter State Farm) filed on April 19, 2016, under motion sequence number two, for an order entering a default against the defendants Accelerated DME Recovery, Inc., ( hereinafter DME), Brookdale Hospital Medical Center, (hereinafter Brookdale Hospital), Brookdale ER PHYS Dept. (hereinafter Brookdale ER), DHD Medical, P.C. (hereinafter DHD), Global Health Pharmacy Corp., (hereinafter Global), Integrated Neurological Associates, PLLC, (hereinafter Integrated), Stand up MRI of Brooklyn, P.C. (hereinafter MRI), and Total Neuro Care, P.C., (hereinafter Neuro) (hereinafter jointly the healthcare providers), pursuant to CPLR § 3215 for failure to appear in the instant action.^[FN1]

Notice of Motion
Affirmation in support
Exhibits 1-8

On January 7, 2016, State Farm commenced the instant declaratory judgment action by filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk’s office. The complaint alleges the following salient facts: Tiesha Thompson (hereinafter Thompson) is insured under an automobile policy issued by State Farm for a 2012 Chevrolet Tahoe (hereinafter the Tahoe). Laurentia St. Rose (hereinafter St. Rose) claimed that on March 31, 2015, she was a pedestrian involved in an accident with the Tahoe. St. Rose, thereafter, filed for no-fault benefits and received medical services for personal injuries allegedly arising out of the March 31, 2015 accident. The Tahoe owned by Thompson was not involved in the accident of March 31, 2015, nor any other accident that St. Rose can claim personal injuries arising out of. The healthcare provider defendants are entities that treated St. Rose for her injuries that allegedly arose out of the accident on March 31, 2015.

The instant action seeks the following declarations: (1) that the alleged accident of March 31, 2015 is not a covered event under the State Farm policy; (2) that Thompson was not negligent or responsible for the alleged accident of March 31, 2015 or any alleged personal injuries of St. Rose; (3) that State Farm is under no obligation to pay any monies for any alleged medical treatment or economic harm stemming from the alleged accident of March 31, 2015.

State Farm seeks an order pursuant to CPLR 3215 granting a default judgment on its claim for a declaratory judgment as against healthcare provider defendants. CPLR 3215 (a) permits a plaintiff to seek default when the defendant has failed to appear. “On motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of [*2]service of the summons and complaint, proof of the facts constituting plaintiff’s claim, and proof of the defaulting party’s default in answering and appearance” (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept. 2011]). CPLR 3215 (f) states that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit “made by the party” (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept. 2009]).

A plaintiff seeking to assert jurisdiction over a defendant must “bear the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process” (Gottesman v Friedman, 90 AD3d 608, 609 [2nd Dept. 2011] quoting Santiago v Honcraft, 79 AD3d 847, 848 [2nd Dept. 2010]).

The procedure to effectuate service of the commencement papers on Limited Liability Companies is delineated in Limited Liability Company Law § 301 (a). The statute provides in pertinent part that the secretary of state shall be the agent of every domestic limited liability company (see LLC § 302 [a]). Limited Liability Company Law § 302 (a) further provides that in addition to the designation of the secretary of state, each domestic limited liability company or authorized foreign limited liability company may designate a registered agent.

Similarly, the method to effectuate service on corporations is set forth in CPLR 311 and Business Corporations Law § 306 (b) (1). CPLR 311 provides that service upon a corporation shall be made by “delivering the summons on an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service” (CPLR 311). BCL 306 (b) (1) provides that service may be effectuated on corporations by delivery to the Secretary of State.

The affidavits of Heather Morigerato (hereinafter Morigerato), plaintiff’s process server, has established prima facie proof of service of the commencement papers upon six of the healthcare providers pursuant to Limited Liability Company Law § 301 (a) and BCL 306 (b) (1). Morigerato has averred that on January 14, 2016 service of the summons and complaint upon DME, DHD, Global, Integrated, MRI, and Neuro was completed by personal delivery upon the Secretary of State.

The affidavit of Jonathan Cohen (hereinafter Cohen), plaintiff’s other process server, has established prima facie proof of service of the commencement papers upon Brookdale Hospital and Brookdale ER pursuant to CPLR 311. Cohen has averred that Brookdale Hospital was served on January 19, 2016, by personal delivery upon Cecilia Villarama, an administrator in Risk Management Department and authorized agent for receipt of service. Cohen has also averred in a separate affidavit of service that Brookdale ER was served on January 19, 2016, by personal delivery upon Karnie Lee, a manager and authorized agent for receipt of service. A process server’s affidavit ordinarily constitutes a prima facie showing of proper service (S. Point, Inc. v. John, 140 AD3d 1150 [2nd Dept. 2016] citing Aurora Loan Servs., LLC v. Gaines, 104 AD3d 885, 886 [2nd Dept. 2013]). State Farm has established that the healthcare defendants were properly served with the commencement papers.

Plaintiff’s next hurdle is a showing that DME, DHD, Global, Integrated, MRI, Neuro, Brookdale Hospital, and Brookdale ER failed to appear or answer the complaint (see CPLR 3215). Pursuant to CPLR 320, a defendant appears by serving an answer or notice of appearance, or by making a motion which has the effect of extending time to answer. An appearance shall be made within twenty days after service of the summons is complete (CPLR [*3]320 [a]). The affirmation of Richard C. Aitken, State Farm’s counsel, establishes that Accelerated DME Recovery, Inc., Brookdale Hospital Medical Center, Brookdale ER PHYS Dept., DHD Medical P.C., Global Health Pharmacy Corp., Integrated Neurological Associates PLLC, and Stand up MRI of Brooklyn, P.C. did not interpose an answer to the complaint.

Assuming proper service of the commencement papers, a plaintiff is required to set forth the facts constituting the elements of the claim to succeed on a motion to hold a defendant in default (see CPLR 3215 (f), HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept. 2009]). In support of the instant motion State Farm has submitted, among other things, the affidavit of Michael Higgins (hereinafter Higgins), its claim specialist.Higgins has averred that he conducted and completed an investigation and concluded that the Tahoe and Thompson, its insured, were not involved in the alleged accident of March 31, 2015.

Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a “justiciable controversy” whether or not further relief is or could be claimed. To constitute a justiciable controversy there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect (see Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept. 2010]).

The primary purpose of a declaratory judgment is to stabilize an uncertain or disputed jural relationship with respect to present or prospective obligations (Village of Woodbury v Brach, 99 AD3d 697, 699 [2nd Dept. 2012] citing, Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept. 2010]). “Where there is no necessity for resorting to the declaratory judgment it should not be employed” (Hesse v Speece, 204 AD2d 514, 515 [2nd Dept. 1994] citing James v Alderton Dock Yards, 256 NY 298, 305 [1931]). Furthermore, a declaratory judgment is ex vi termini a judgment on the merits (Dupigny v St. Louis, 115 AD3d 638, 640 [2nd Dept. 2014]). Until disputed questions of fact necessary to be determined before judgment can be rendered are settled, it is plant that rights and legal relations cannot be determined, defined and declared (Id).

“[A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that plaintiff establish a right to a declaration against… a defendant.” (Dole Food Co., Inc. v Lincoln General Ins. Co., 66 AD3d 1493 [4th Dept. 2009]; see also Levy v Blue Cross and Blue Shield of Greater New York, 124 AD2d 900, 902 [3rd Dept. 1986] citing Nat. Sur. Corp. v Peccichio, 48 Misc 2d 77, 78 [Sup. Ct., Albany County 1965]). This does not mean that the defendant can frustrate the plaintiff’s claim just by defaulting, which would amount to an absurdity, or, on the other hand, that the defendant will be dragged into court (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7, CPLR 3001:23). It apparently means only that the plaintiff must nonetheless take the stand to attest to all parts of the claim. In ordinary actions, however, proof on a default application can be made solely on paper (Id.).

State Farm annexed an affidavit of Higgins and examination under oath (EUO) of Thomson, its insured. The EUO was conducted on September 17, 2015 over three months before the instant action was commenced. The EUO is not admissible under CPLR 3117. Moreover, it has been recognized that while the transcripts of examinations under oath may be admissible to defeat a summary judgment motion, they are nonetheless hearsay (Rizz Management Inc. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1102(A), 2008 NY Slip Op. 51191(U) [NY Dist. Ct. 2008] citing CPT Medical Service, P.C. v Utica Mutual Insurance, 12 [*4]Misc 3d 237, 811 N.Y.S.2d 909 (Civ. Ct. Queens Co.2006). As such, those statements are inadmissible at trial unless, for example, they are used for impeachment purposes upon cross-examination in the event that such declarant or assignor testifies (Id).

As a result, the only admissible testimony in support of a declaratory judgment is Higgins’ affidavit. The Higgins’ affidavit, however, consists of his conclusions based on an investigation which relies primarily on hearsay evidence. Consequently, although State Farm has established that the healthcare provider defendants are in default in answering the complaint it has not established its right to a declaration (Dole Food Co., Inc. v Lincoln General Ins. Co., 66 AD3d 1493 [4th Dept. 2009]). State Farm is directed to file a note of issue and present its proof at an inquest.

State Farm Mutual Automobile Insurance Company’s motion for a declaratory judgment against defendants Accelerated DME Recovery, Inc., Brookdale Hospital Medical Center, Brookdale ER PHYS Dept., DHD Medical P.C., Global Health Pharmacy Corp., Integrated Neurological Associates PLLC, Stand up MRI of Brooklyn, P.C., based on their default in answering the complaint is denied.

The foregoing constitutes the decision and order of this court.

Dated: August 16, 2016

Hon. Francois A. Rivera
J.S.C.

Footnotes

Footnote 1: At oral argument the plaintiff conceded that it accepted a late answer and was no longer seeking a default against from DME and DHD.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 29, 2014. The judgment, insofar as appealed from as limited by the brief, entered pursuant to so much of an order of the same court as, upon granting plaintiff’s motion for summary judgment, directed that the judgment include an award of statutory interest pursuant to Insurance Law § 5106 (a), in the sum of $15,457.93, computed from April 30, 2002.

ORDERED that the judgment, insofar as appealed from, is modified by deleting the provisions thereof computing statutory interest pursuant to Insurance Law § 5106 (a) from April 30, 2002 and awarding interest in the sum of $15,457.93, and by providing that interest be computed from August 30, 2013; as so modified, the judgment, insofar as appealed from, is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of the statutory interest pursuant to Insurance Law § 5106 (a) in accordance herewith, and the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in April 2002. By order dated July 3, 2014, the Civil Court granted plaintiff’s motion for summary judgment and directed that the judgment include statutory interest. A judgment was entered pursuant to that order, which awarded plaintiff, among other sums, the principal amount of $5,255.74 and $15,457.93 in statutory interest (see Insurance Law § 5106 [a]), computed as of April 30, 2002. On appeal from the judgment, defendant limits its arguments to the award of statutory interest, contending that, due to plaintiff’s inaction, it should not have been awarded statutory interest or, in the alternative, that statutory interest should not begin to accrue until August 30, 2013, when plaintiff served a motion to compel discovery.

Where a provider does not commence a no-fault action within 30 days of receipt of the insurer’s denial of claim form, the Insurance Department Regulations provide that statutory prejudgment interest (see Insurance Law § 5106 [a]) does not begin to accumulate until an action is commenced (11 NYCRR 65—3.9 [c]). If an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the … court proceeding” (11 NYCRR 65—3.9 [d]). In this case, plaintiff took no meaningful action to prosecute the case until it served a motion to compel discovery on August 30, 2013. Plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th [*2]Jud Dists 2014]).

Accordingly, the judgment, insofar as appealed from, is modified by deleting the provisions thereof computing statutory interest from April 30, 2002 and awarding interest in the sum of $15,457.93, and by providing that interest be computed from August 30, 2013. The matter is remitted to the Civil Court for a recalculation of the statutory interest pursuant to Insurance Law § 5106 (a) and the entry of an appropriate amended judgment thereafter.

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

Appeal from a judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), entered June 10, 2014. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover assigned first-party no-fault benefits in the sum of $953.77. At a nonjury trial, plaintiff testified that he had performed certain testing on the patient, based on a referral from an orthopedic surgeon, without having inquired as to whether the testing was medically necessary. He stated that he had submitted a claim to defendant for $1,135, but only $181.23 of that claim had been paid, leaving a balance due of $953.77. Defendant’s expert witness, who was board-certified in physical medicine and rehabilitation, testified that there was a lack of medical necessity for the services at issue. Following the trial, the City Court dismissed the action in a judgment entered June 10, 2014.

In a small claims action, this court’s review is limited to a determination of whether “substantial justice has . . . been done between the parties according to the rules and principles of substantive law” (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

The issue at trial was whether the services in question were medically necessary. Plaintiff’s challenge to defendant’s expert witness’s qualifications to testify as to the lack of medical necessity, on the ground that the witness was not an orthopedic surgeon, goes to the weight and not to the admissibility of his testimony (see Vargas v Sabri, 115 AD3d 505 [2014]), and the City Court, as the trier of fact, was free to accept or reject his opinion. The City Court apparently accepted defendant’s expert witness’s testimony and implicitly found that defendant had satisfied its burden of demonstrating that the services were not medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). It was then plaintiff’s burden to prove, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2012]). As plaintiff failed to satisfy his burden, the City Court did not err in dismissing the action.

While plaintiff contends on appeal that he has a hearing impairment which prevented him from fully participating at trial, and that the City Court made no accommodations for his impairment, the record is devoid of any indication that plaintiff had such an impairment or that he had requested an accommodation therefor. This court may not consider matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). Plaintiff’s remaining contentions are either unpreserved for appellate review or without merit.

Accordingly, as the court’s determination is supported by the record and provides the parties with substantial justice (see UCCA 1804, 1807), the judgment is affirmed.

Iannacci, J.P., and Tolbert, J., concur.

Marano, J., taking no part.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 4, 2014. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the action is barred by virtue of defendant’s workers’ compensation fee schedule defense.

ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination of defendant’s motion for summary judgment dismissing the complaint, 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, asserting that it had timely and properly denied the claims at issue on the ground of lack of medical necessity, based on an affirmed independent medical examination report. In the supporting papers, defendant also argued that a portion of each claim sought to be recovered was in excess of the amount permitted by the workers’ compensation fee schedule and, thus, in any event, so much of the complaint as sought such excess amount should be dismissed. Defendant’s denial of claim forms indicate that no payments had been made on the claims. Plaintiff made no arguments and proffered no evidence in its opposition papers with respect to the fee schedule issue. By order dated June 4, 2014, the District Court granted defendant’s motion to dismiss the complaint, stating that the court’s “determination is made on the basis of defendant’s preserved fee schedule defense.”

Plaintiff argues on appeal that its opposition papers in the District Court were sufficient to raise a triable issue of fact as to both the fee schedule defense and defendant’s claim that the services rendered lacked medical necessity.

At the outset, we note that the District Court never addressed the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity. With respect to defendant’s workers’ compensation fee schedule defense, as defendant has indicated that it had made no payments on the claims, it was only seeking to dismiss so much of the complaint as sought to recover an amount in excess of the workers’ compensation fee schedule, and, thus, it was error for the District Court to have awarded defendant summary judgment dismissing the entire complaint on that basis. In view of the foregoing, the District Court should have first addressed defendant’s claim for summary judgment dismissing the [*2]complaint on the ground of lack of medical necessity, as that defense was potentially dispositive of the entire action.

Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination of defendant’s motion for summary judgment dismissing the complaint in accordance with this decision.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 20, 2016

APPEARANCES OF COUNSEL

Nightingale Law, P.C., Glen Cove (Michael S. Nightingale of counsel), for appellant.

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

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied plaintiff’s claim based on improper billing. The claim form, which had been submitted to defendant by plaintiff under her Social Security number, indicated that the services had been performed by her employee, Dr. Samuel Theagene. Plaintiff’s counsel described plaintiff as an “unincorporated solo practitioner,” conceded that plaintiff uses her own Social Security number when billing no-fault carriers, and contended that such use is proper even when billing for services of an employee. The Civil Court, in an order entered September 8, 2014, denied defendant’s motion, finding, among other things, that there were questions of fact regarding the relationship between plaintiff and the treating doctor. We reverse.

A billing provider seeking to recover no-fault benefits for services rendered to an assignor must provide, at the bottom of the claim form, a taxpayer identification number either in the form of a Social Security number or an employer identification number. Social Security numbers are used to identify individual persons, while employer identification numbers are used to identify employers (see 26 CFR 301.6109-1 [a] [1] [ii]). “An individual . . . who is an employer or who is engaged in a trade or business as a sole proprietor should use an employer identification number” (26 CFR 301.6109-1 [a] [1] [ii] [D]), since an employer identification number is required if the taxpayer “[p]ay[s] wages to one or more employees” (Internal Revenue Service Publication No. 334 [Tax Guide for Small Business], ch 1 [2015]). Thus, it is permissible for a billing provider operating{**54 Misc 3d at 45} as a sole proprietor to use his or her own Social Security number on the claim form if it is the billing provider who rendered the services in question. However, where, as here, a doctor bills for services rendered by a treating provider in that doctor’s employ, it is impermissible for the doctor to bill using his or her own Social Security number.

As defendant demonstrated that the claim form submitted by plaintiff was for services performed by plaintiff’s employee, that the claim form was submitted under plaintiff’s Social Security number, and that the denial of claim form based upon improper billing was mailed within 30 days of defendant’s receipt of the claim form, defendant established its entitlement to summary judgment.

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

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

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 12, 2014. The judgment, entered upon a decision of the same court dated February 4, 2014, after a nonjury trial, awarded plaintiff the principal sum of $7,590.60.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2014 is deemed a premature notice of appeal from the judgment entered November 12, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a New Jersey facility to recover assigned first-party no-fault benefits, the parties stipulated, prior to the commencement of a nonjury trial, that defendant had received plaintiff’s claim form seeking $7,590.60 for a facility fee for a manipulation under anesthesia (MUA) procedure performed at plaintiff’s facility and that defendant had issued a timely denial of claim form premised upon a lack of medical necessity, based on the peer review report of Dr. Robert Snitkoff, a licensed chiropractor, who had been certified in MUA. The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.

In a decision after trial, the Civil Court (Philip S. Straniere, J.) found that Dr. Priolo was a credible witness and that his testimony had sufficiently demonstrated a lack of medical necessity. Because plaintiff had not submitted any evidence to the contrary, the Civil Court determined that “the action must be dismissed.” Nevertheless, the court, in its decision, which ultimately found for plaintiff in the sum of $7,590.60, stated the following: “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,590.60 was entered pursuant to the decision.

The issue in this case is not whether chiropractors are permitted to perform MUA, but [*2]rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question. Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 12, 2014. The judgment, entered upon a decision of the same court dated February 4, 2014, after a nonjury trial, awarded plaintiff the principal sum of $7,790.60.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2014 is deemed a premature notice of appeal from the judgment entered November 12, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a New Jersey facility to recover assigned first-party no-fault benefits, the parties stipulated, prior to the commencement of a nonjury trial, that defendant had received plaintiff’s claim form seeking $7,790.60 for a facility fee for a manipulation under anesthesia (MUA) procedure performed at plaintiff’s facility and that defendant had issued a timely denial of claim form premised upon a lack of medical necessity, based on an independent medical examination (IME). The sole witness to testify at trial was Dr. Kevin S. Portnoy, D.C., a licensed chiropractor, who had performed the IME. Dr. Portnoy testified that he had concluded, based on the IME, that the assignor’s injuries had resolved and that there was therefore a lack of medical necessity for the MUA procedure.

In a decision after trial, the Civil Court (Philip S. Straniere, J.) found that Dr. Portnoy was a credible witness and that his testimony had sufficiently demonstrated a lack of medical necessity. Because plaintiff had not submitted any evidence to the contrary, the Civil Court determined that “the action must be dismissed.” Nevertheless, the court, in its decision, which ultimately found for plaintiff in the sum of $7,790.60, stated the following: “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,790.60 was entered pursuant to the decision.

Dr. Portnoy’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity for any further chiropractic treatment, including the MUA procedure at issue (see Alev Med. Supply, Inc. v [*2]Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, by extension, the facility fee which was sought in the claim in question. Thus, the burden shifted to plaintiff to present evidence as to why that additional treatment was needed either because plaintiff’s assignor’s condition had changed after the IME or because Dr. Portnoy’s opinion following the IME was erroneous. As plaintiff called no witnesses to rebut defendant’s showing of a lack of medical necessity (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Civil Court should have dismissed the complaint.

In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 3, 2014. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $181.50, together with costs, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

In this action by a provider to recover first-party no-fault benefits for medical supplies provided to its assignor, a nonjury trial was held, limited, pursuant to a stipulation, to defendant’s defense of lack of medical necessity. The parties further stipulated to defendant’s witness’s “medical expertise.” Defendant’s doctor stated that he had examined a peer review report prepared by a different doctor, and that he had also reviewed the assignor’s medical records which had been considered by the peer reviewer. The witness testified about the medical supplies at issue, with the exception of a massager, and stated that he agreed with the peer reviewer’s conclusion that the supplies lacked medical necessity. Plaintiff called no witness to rebut defendant’s doctor’s testimony.

In a decision after trial, the Civil Court directed the entry of judgment in favor of plaintiff in the principal sum of $181.50 for a massager, since it was undisputed that defendant’s medical witness had not testified about it. The Civil Court further found that defendant had demonstrated that the remaining supplies in question were not medically necessary, and that plaintiff had failed to rebut defendant’s showing. Thereafter, plaintiff submitted a proposed judgment, which stated only that judgment was rendered in favor of defendant and made no award to plaintiff. The judgment, entered in the Civil Court on July 3, 2014, dismissed the complaint. On appeal, plaintiff argues that the judgment that dismissed the complaint, “except for $181.50,” should be reversed. Defendant concedes that the Civil Court limited plaintiff’s recovery to the sum of $181.50, and defendant raises no issue with respect to that part of the court’s decision after trial.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the case at bar, the record supports the determination of the Civil Court, which was based upon its assessment of the credibility of defendant’s witness and its recognition that plaintiff had not called a rebuttal witness.

However, we note that, whereas the Civil Court, in its decision after trial, directed that plaintiff be awarded the principal sum of $181.50, together with interest, costs and legal fees, the judgment dismissed the complaint. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Kim v Schiller, 112 AD3d 671, 674 [2013]; see Green v Morris, 156 AD2d 331 [1989]). Such an inconsistency may be corrected by way of a motion for resettlement, pursuant to CPLR 2221, or on appeal, pursuant to CPLR 5019 (a) (see Kim, 112 AD3d at 674; Green, 156 AD2d at 331). We therefore reverse the judgment and remit the matter to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $181.50, together with costs, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder (see CPLR 5019 [a]).

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 September 8, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action on January 12, 2012 to recover first-party no-fault benefits for medical supplies provided to its assignor, who allegedly sustained injuries in a motor vehicle accident on July 3, 2011. Defendant (Nationwide) answered the complaint in February 2012. On July 27, 2012, Nationwide commenced a declaratory judgment action in Supreme Court, Nassau County, against plaintiff herein, seeking a declaration that Nationwide was under no obligation to pay any of plaintiff’s claims arising from the accident at issue, since plaintiff had failed to comply with a condition precedent to reimbursement of first-party no-fault benefits by failing to appear for duly scheduled examinations under oath. Plaintiff did not appear or serve an answer in the Supreme Court declaratory judgment action. By judgment entered January 28, 2013, the Supreme Court granted Nationwide a declaratory judgment on default, and, on April 1, 2013, the default judgment was served with notice of entry on plaintiff. On December 6, 2013, Nationwide moved in the Civil Court for summary judgment dismissing the complaint on the ground that, in essence, plaintiff’s action is barred by virtue of the declaratory judgment. Plaintiff opposed the motion only on the ground that the declaratory judgment had no preclusive effect on the present action.

Thereafter, in a post-motion brief, plaintiff’s attorney argued that Nationwide had waived the defenses of res judicata and collateral estoppel by failing to raise those defenses in its answer or in a motion to dismiss the complaint, and that Nationwide had not moved to amend its answer to include those defenses. Plaintiff’s counsel contended that, even if Nationwide’s motion were treated as implicitly seeking leave to amend its answer, plaintiff was prejudiced by Nationwide’s unexplained delay in making the motion. Defense counsel argued in her post-motion brief that, even if res judicata and collateral estoppel are not asserted in an answer, such defenses may be raised in a motion for summary judgment where, as here, there is an absence of prejudice and surprise to the other side. Defense counsel noted that, in any event, the declaratory judgment had not been entered until after plaintiff had commenced its action in the Civil Court and after Nationwide had answered the complaint. Plaintiff appeals from an order of the Civil Court, [*2]entered September 8, 2014, which granted Nationwide’s motion.

Nationwide had no basis to assert the defenses of collateral estoppel and res judicata before January 28, 2013, when the declaratory judgment was entered in the Supreme Court (see Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While plaintiff contended in the Civil Court that Nationwide had failed to move to amend its answer, the answer may be deemed amended to include the affirmative defenses of collateral estoppel and res judicata (see Barrett v Kasco Constr. Co., 84 AD2d 555 [1981], affd 56 NY2d 830 [1982]), and a waiver of such defenses (see CPLR 3211 [e]) will not result where, as here, the defendant’s failure to assert the defenses in its answer did not take the plaintiff by surprise (see Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; see e.g. Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see also Rogoff v San Juan Racing Assn., 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]). We note that, notwithstanding plaintiff’s conclusory assertion of prejudice, an examination of the record reveals none. “Indeed, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party’ (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see also Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Allen v Matthews, 266 AD2d 782 [1999])” (Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U], *1).

Consequently, in light of the Supreme Court’s declaratory judgment, the Civil Court properly granted Nationwide’s motion for summary judgment under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order is affirmed.

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