Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered February 21, 2019. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT code 99212; claims for services rendered on June 2, 2014, June 9, 2014, June 10, 2014, July 15, 2014, November 18, 2014, December 31, 2014, March 30, 2015, May 28, 2015, and July 29, 2015; and claims for services purportedly rendered on October 6, 2014 ($71.40), October 6 to October 22, 2014 ($334.60), and October 13 to October 22, 2014 ($394.44).

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on June 10, 2014, which was billed under CPT code 99205, is denied, and, upon a search of the record, summary judgment is granted to plaintiff upon that claim in the principal sum of $97.14; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff [*2]appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT code 99212, on the ground that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule; claims for services rendered on June 2, 2014, June 9, 2014, June 10, 2014, July 15, 2014, November 18, 2014, December 31, 2014, March 30, 2015, May 28, 2015, and July 29, 2015, on the ground that defendant had paid those claims in full; and claims for services purportedly rendered on October 6, 2014 ($71.40), October 6 to October 22, 2014 ($334.60), and October 13 to October 22, 2014 ($394.44), on the ground that defendant had not received those claims.

Defendant supported its motion with affidavits by its claim specialist and an independent certified professional coder, which affidavits were sufficient to establish, prima facie, with respect to the claims for services billed under CPT code 99212, that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. However, defendant’s moving papers establish that defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on June 10, 2014, which was billed under CPT code 99205. As set forth in the affidavits defendant submitted from its claim specialist and the certified professional coder, plaintiff was entitled to $97.14 for that claim, which defendant had denied in full. Consequently, upon a search of the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that plaintiff is entitled to summary judgment upon that claim in the principal sum of $97.14.

With respect to the bills for services rendered on June 2, 2014, June 9, 2014, July 15, 2014, November 18, 2014, December 31, 2014, March 30, 2015, May 28, 2015, and July 29, 2015, defendant demonstrated, through the submission of checks to plaintiff which plaintiff had endorsed, that defendant had paid those bills in full, and plaintiff failed to raise a triable issue of fact with respect thereto.

With respect to the bills for services purportedly rendered on October 6, 2014, October 6 to October 22, 2014, and October 13 to October 22, 2014, the affidavit by defendant’s claim specialist contained more than a mere conclusory denial of receipt of the claim forms allegedly mailed to defendant (cf. Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) and sufficiently established, prima facie, that defendant had not received those claim forms (see Matter of Government Empls. Ins. Co. v Morris, 95 AD3d 887 [2012]). In the absence of a sworn statement sufficient to demonstrate, prima facie, plaintiff’s submission of the claim forms at issue, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims (see Natural Therapy Acupuncture, P.C. v Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*3]Dists 2012]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on June 10, 2014, which was billed under CPT code 99205, is denied, and, upon a search of the record, summary judgment is granted to plaintiff upon that claim in the principal sum of $97.14.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 15, 2022

Decided on July 1, 2022

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

Decided on July 1, 2022

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

Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated March 19, 2021. The order, insofar as appealed from, denied the branch of defendant’s motion seeking 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, defendant moved to amend the caption and for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Defendant scheduled EUOs after receipt of the claims at issue here. To establish its prima facie entitlement to summary judgment dismissing the complaint, defendant had to demonstrate, as a matter of law, that it twice duly demanded an EUO, that the assignor twice failed to appear, and that defendant issued a timely denial as to each claim after the second failure to appear (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Quality Health [*2]Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

In its motion, defendant set forth three scheduled EUO dates: June 8, 2018, June 25, 2018 and July 10, 2018. Defendant’s motion papers assert that the June 8, 2018 EUO was mutually rescheduled, which, if such rescheduling “occur[red] prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, defendant failed to demonstrate that fact as a matter of law (cf. Sovereign Acupuncture, P.C. v American Commerce Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Indeed, defendant’s denial of claim forms list all three dates as failures to appear. As defendant denied the claims on July 27, 2018, more than 30 days after June 25, 2018, the second scheduled EUO date (see 11 NYCRR 65-3.8 [c]), and as defendant did not establish that the first EUO had been mutually rescheduled, an issue of fact remains as to whether defendant’s denials were timely and, thus, whether defendant is precluded from interposing its defense that plaintiff’s assignor failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

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

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

Law Office of Kevin J. Philbin (Kevon Lewis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), entered September 17, 2020. 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 modified by providing that plaintiff’s cross motion for summary judgment 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, defendant appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

The affidavits defendant submitted in support of its motion for summary judgment demonstrated, prima facie, that independent medical examination (IME) scheduling letters had been timely and properly mailed (see 11 NYCRR 65-3.5 [a], [d]; Appendix 13; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 71 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, contrary to defendant’s contention, the affidavits from the doctors who were scheduled to perform the IMEs did not establish that [*2]they possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, defendant failed to establish its entitlement to judgment, as a matter of law, dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs.

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

Bryan Cave, LLP (Jennifer M. Jordan of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered November 19, 2019. The order, insofar as appealed from, denied defendant’s motion for partial summary judgment dismissing the second and third causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for partial summary judgment dismissing the second and third causes of action on the ground that plaintiff’s assignor had failed to appear at duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant submitted an affidavit by an employee of Empire Stat Medical Review, P.C., which had been retained by defendant to schedule IMEs. This affidavit demonstrated that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant [*2]also demonstrated that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Therefore, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage (see id. at 722). Defendant’s motion further demonstrated that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, as plaintiff’s assignor’s bald conclusory denial of receipt was insufficient to rebut the presumption that the IME scheduling letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Tyorkin v Repwest Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Triangle R, Inc. v Tri-State Consumer Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50256[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant was entitled to partial summary judgment dismissing the second and third causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.

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

[*1]

Lawrence N. Rogak, LLC, Oceanside, NY, for appellant.

Law Offices of Michael H. Joseph, PLLC, White Plains, NY (Clifford S. Nelson of counsel), for respondent.

In an action to recover first-party no-fault benefits under a policy of automobile insurance, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2017, and (2) a judgment of the same court, dated October 26, 2017. The order granted the plaintiff’s motion for summary judgment in the principal sum of $44,573.86. The judgment, upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $44,573.86.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In 2008, a vehicle operated by the plaintiff and insured by the defendant, Merchants Mutual Insurance Company, was struck in the rear by a sanitation truck owned by the City of White Plains. The plaintiff subsequently underwent surgery to remove his L5-S1 disc and replace it with an artificial lumbar disc. After the defendant denied the subject claims on the ground that the surgery was not medically necessary, the plaintiff commenced the instant action to recover first-party no-fault benefits. The defendant answered the complaint and the plaintiff later moved for summary judgment in the principal sum of $44,573.86, representing unpaid first-party no-fault benefits under the insurance policy. The defendant opposed the motion. The Supreme Court granted the plaintiff’s motion and issued a judgment in favor of the plaintiff in the principal sum of $44,573.86. The defendant appeals.

“The No-Fault Automobile Insurance Law defines ‘first party benefits’ as ‘payments [*2]to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle’ ” (Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18 [1994], quoting Insurance Law § 5102 [b]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 47 [2015]). The no-fault law defines “basic economic loss” (Insurance Law § 5102 [a]) as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . [and] surgical . . . services” (id. § 5102 [a] [1] [i]) as well as loss of earnings from work. Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1; see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]).

A plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006]).

In support of his motion, the plaintiff submitted, inter alia, the disputed claims, the defendant’s form denials, the affidavit of his surgeon, Richard Peress, and the affidavit of Christine Taylor, assistant director of patient accounts for Phelps Memorial Hospital (hereinafter the hospital).

The plaintiff demonstrated, prima facie, that the prescribed statutory billing forms relative to the medical services provided by Peress were mailed and received, and that the defendant failed to pay or validly deny the claims within the permissible 30 days (see Insurance Law § 5102 [a] [1]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Hobby v CNA Ins. Co., 267 AD2d 1084 [1999]; see also DeGiorgio v Racanelli, 136 AD3d 734 [2016]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]). In opposition, the defendant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to whether the claimed benefits were properly denied on the ground of lack of medical justification (see 11 NYCRR 65-3.8 [b] [4]).

Contrary to the defendant’s contention, the plaintiff had standing to pursue his claims for no-fault benefits (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626 [2020]).

Given that the amount of the outstanding no-fault benefits relative to the medical services provided by Peress exceeds the principal sum awarded in the judgment, we need not reach the parties’ remaining contentions, including whether the plaintiff was entitled to no-fault benefits relative to the medical services provided by the hospital.

Accordingly, we affirm the judgment. Barros, J.P., Iannacci, Chambers and Christopher, JJ., concur.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5 [a], [b]; see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507 [1st Dept 2021]).

As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215 [f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).

Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215 [f]; see generally Pryor v New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). Concur—Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ.

Index No. 160339/2020

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber and Lindsay A. Padover of counsel), for plaintiff.

Samandarov & Associates, P.C., Floral Park, NY (David M. Gottlieb of counsel), for defendant Quality Ortho Complete Joint Care, P.C.

In this no-fault insurance coverage action, plaintiff, Unitrin Safeguard Insurance Company, moves for default judgment under CPLR 3215 against no-fault claimants Oscar Galeas and Jairo Ruales. Unitrin also moves for default judgment against a number of medical providers who are benefits assignees of Galeas and Ruales (or assignees of two other defendants, no-fault claimants Milton Parra and Daniel Espinoza).^[FN1] Answering defendant Quality Ortho Complete Joint Care, P.C., cross-moves to dismiss under CPLR 3215 (c) and CPLR 3211 (a) (4).

Unitrin’s motion for default judgment is granted without opposition. Quality Ortho’s cross-motion to dismiss Unitrin’s claims against it is granted only to the extent of directing consolidation of this action with the parallel action brought by Unitrin against Quality Ortho.

With respect to Unitrin’s default-judgment motion, Unitrin has sufficiently established service on the defendants that are the subject of its motion, and those defendants’ defaults. And the affidavit of Unitrin’s no-fault claims representative (as supported by the accompanying police report) shows that Unitrin had a founded belief that the claimants’ injuries (and ensuing benefits claims for medical treatment) did not arise from a covered collision. (See NYSCEF Nos. 52-53.) Unitrin is therefore entitled to default judgment against these defendants.

Quality Ortho’s cross-motion to dismiss is based on two independent grounds. Quality Ortho contends first that Unitrin’s action must be dismissed as against it under CPLR 3215 (c) because Unitrin failed to take proceedings for the entry of default judgment against other defendants within one year of those defendants’ defaults. But it is undisputed that Quality Ortho timely answered.^[FN2] This court sees no basis on which Quality Ortho—as opposed to a different, defaulting defendant—may even seek dismissal under CPLR 3215 of Unitrin’s claims against it.^[FN3] Nor does Quality Ortho supply any authority for the proposition that a plaintiff’s failure to seek default judgment within a year against a defaulting defendant requires dismissal of the plaintiff’s claims as against a different, answering defendant. In any event, this court concludes that given the numerous defendants in the action, Unitrin’s active prosecution of its claims against some of the defendants, and its active settlement negotiations with other defendants, Unitrin has established good cause for its brief delay in bringing this motion for default judgment. (See NYSCEF No. 51 at &para 32.) The court declines to dismiss Unitrin’s claims against Quality Ortho on this ground.

Quality Ortho also argues that Unitrin’s claims against it must be dismissed under CPLR 3211 (a) (4). Quality Ortho contends that Unitrin’s claims here impermissibly duplicate claims asserted in a de novo challenge to an arbitration award, also pending in Supreme Court, New [*2]York County.^[FN4] This court is unpersuaded that Unitrin’s claims against Quality Ortho in this action should be dismissed. Unitrin filed this action 10 months before the parallel de novo action, seeking broader relief against more parties; and this action has progressed materially farther (including through the assignment of the undersigned pursuant to Unitrin’s RJI). Dismissal of Unitrin’s claims against Quality Ortho here would be inappropriate under the first-in-time rule that generally governs motions to dismiss under CPLR 311 (a) (4).^[FN5] (See National Union Fire Ins. Co. of Pittsburgh, Pa. v Jordache Enters., 205 AD2d 341, 343 [1st Dept 1994].)

At the same time, it is undisputed that the two actions each feature Unitrin as the plaintiff and Quality Ortho as a defendant and involve closely overlapping questions of fact and law, such that leaving the two actions to run along separate, parallel tracks could lead to needless duplication of judicial effort and inconsistent results. This court holds that the de novo action, Index No. 158403/2021, should be consolidated into this action under CPLR 3211 (a) (4) and CPLR 602.^[FN6]

Settle Order.

Footnotes

Footnote 1:Unitrin represents that defendants Parra and Espinoza have not yet been located for purposes of service. (See NYSCEF No. 51 at 2 n 1.)

Footnote 2:Indeed, Unitrin acknowledges this timely answer in explaining why its motion does not seek default judgment against Quality Ortho. (See NYSCEF No. 51 at 2 n 1.)

Footnote 3:To be clear, Quality Ortho may, under the language of CPLR 2215, cross-move against Unitrin although it was not a subject of Unitrin’s initial motion. This court holds only that Quality Ortho may not cross-move to dismiss under CPLR 3215 (c) when it did not default.

Footnote 4:See Unitrin Safeguard Insurance Company v Quality Orthopedics & Complete Joint Care, PC, Index No. 158403/2021 (Sup Ct, NY County).

Footnote 5:Quality Ortho has not moved to dismiss under CPLR 3211 (a) (4) in the parallel de novo action.

Footnote 6:This court may properly order consolidation sua sponte in the exercise of its authority under CPLR 3211 (a) (4) to “make such order as justice requires.” Thus, for example, in John J. Campagna, Jr., Inc. v Dune Alpin Farm Assocs. (81 AD2d 633, 634 [2d Dept 1981]), the Appellate Division, Second Department held that the motion court properly applied the first-in-time rule in denying dismissal under CPLR 3211 (a) (4). But the Second Department went on to hold that “to best serve the interests of judicial economy while still preserving the rights of the parties, the [motion] court should have sua sponte ordered consolidation of these actions,” and itself directed consolidation on appeal. (Id.)

Decided on June 17, 2022

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