Decided on June 25, 2015

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered October 15, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered October 15, 2013, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U] [App Term, 1st Dept 2015]).

In opposition to defendant’s prima facie showing, plaintiffs did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

In view of our determination, we reach no other issue.

261079/2014

Attorney for Petitioner

Jason Tenenbaum, Esq.

The Law Office of Jason Tenenbaum, P.C.

595 Stewart Avenue, Suite 400

Garden City, New York 11530

Ralph C. Caio, Esq.

The Law Offices of Sukhbir Singh

95-18 130 Street

South Richmond Hill, New York 11419

The following papers numbered 1 to 3 read on this motion to vacate

NoOn Calendar of April 30, 2015PAPERS NUMBER

Notice of Motion-Order to Show Cause – Exhibits and Affidavits Annexed————————& mdash;____1___

Answering Affidavit and Exhibits———— —————————&mdas h;—————————&md ash;—————————___ 2___

Replying Affidavit and Exhibits————————&m dash;—————————& mdash;————————— ——————-____3___

Affidavit—————————— ;——————————— 51;———————————& #151;—————————______

Pleadings — Exhibit————————&md ash;—————————& mdash;————————— —————————&mdas h;————_______

Memorandum of Law——————————— ——————————— 51;———————————& #151;—————- ______ Stipulation — Referee’s Report —Minutes———————&mdash ;—————————&mda sh;—————————&m dash;—________Filed papers————————— —————————&mdas h;—————————&md ash;—————————& mdash;———-_______________

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Petitioner seeks judgment pursuant to CPLR 7511(b), vacating the master arbitration

award dated November 18, 2014, that granted respondent, Professional Chiropractic Care, P.C.,

(Care), an award of $9,221.79, and reinstating the decision of the no-fault arbitrator who

dismissed the no-fault claims.

As a result of a motor vehicle accident, respondent/assignor, Thomas Yanick, (Yanick),

underwent three days of manipulation under anesthesia. Yanick applied for no-fault

benefits, and failed to appear for scheduled IMEs. The arbitrator, in a decision dated August 16,

2014, denied Care’s claim for no-fault benefits. Care appealed to a master arbitrator, and the

master arbitrator reversed the arbitrator’s award and in its place, awarded Care, $9,221.79, on

the grounds that petitioner did not inform Care with sufficient specificity that the denial of

Care’s claim was the result of Yanick’s failure to appear for IMEs.

The award of an arbitrator shall be vacated pursuant to CPLR 7511(b) under the

following circumstances:

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

CPLR 7511(b).

“In addition, article 75 review questions whether the decision was rational or had a

plausible basis. (Caso v Coffey, 41 NY2d 153, 158, supra.).” (Matter of Petrofsky (Allstate Ins.

Co.), 54 NY2d 207, 211 [1981]). In reply papers, petitioner limits the petition to “whether the

master arbitrator’s basis in reversing the findings of the lower arbitrator was irrational.” (reply,

par. 17). Petitioner then cites to Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,

PLLC, 82 AD3d 559, [1st Dept 2011], to support its argument that Unitrin dictates a different

result from the master arbitrator’s award in this case.

In his award the master arbitrator cited to General Acc. Ins. Group v Cirucci, 46 NY2d

862 [1979], for the following: “although an insurer may disclaim coverage for a valid reason

(Insurance Law, § 167, subd 8) the notice of disclaimer must promptly apprise the claimant with

a high degree of specificity of the ground or grounds on which the disclaimer is predicated.” Id.

at 864. There is no dispute and the arbitrator acknowledged that the denial of coverage

referenced an incorrect date for an allegedly missed IME and EUO providing a rational basis for

the master arbitrator’s award.

While petitioner states that the master arbitrator’s award is irrational, petitioner’s

arguments center on the master arbitrator having made an error of law in failing to apply Unitrin

to the facts of this case. “The master arbitrator’s determination of the law need not be correct;

mere errors of law are insufficient to warrant setting aside the master arbitrator’s award, and on

questions of substantive law, the determination should be upheld if there is a rational basis for it

(see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576-577 [2002]).”

(101 Acupuncture, P.C. v Utica Mut. Ins. Co., 16 Misc 3d 132(A), (App. Term 2d Dept 2007]).

Finally, petitioner cites to 11NYCRR 65-4.10 (a) (4) for the proposition that the Codes

Rules and Regulation of the State of New York allow this court to vacate the master arbitrator’s

award as “incorrect as a matter of law.” However, 11 NYCRR 65-4.10 (a) (4) only permits a

master arbitrator to vacate or modify an arbitrator. 11NYCRR 65-4.10 (a). A court may not

vacate or modify a master arbitrator’s or an arbitrator’s award on grounds that the award is

incorrect as a matter of law.

Accordingly, the petition is denied, and judgment is rendered in favor of respondent.

The foregoing shall constitute the decision and order of the Court.

Dated: _____________________________________________KENNETH L. THOMPSON JR. J.S.C.

[*1]

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

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 24, 2014. The order and judgment, among other things, denied that part of plaintiff’s motion for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center and Kimba Medical Supply, LLC.

It is hereby ordered that the order and judgment so appealed from is unanimously modified on the law by granting that part of the motion for leave to enter a default judgment against defendant Cliffside Park Imaging & Diagnostic Center and as modified the order and judgment is affirmed without costs.

Memorandum: Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC (Kimba). Defendants Naz and Fatima Tahir made claims for no-fault benefits arising from injuries they allegedly sustained in an automobile accident covered by an insurance policy issued to plaintiff’s policyholder. Naz and Tahir assigned their rights to collect no-fault benefits to certain medical providers, including Cliffside and Kimba, each of which made claims for services rendered to Naz and Tahir as a result of the alleged accident. Plaintiff disclaimed coverage based on the failure of Naz and Tahir to provide timely written notice of the accident pursuant to the insurance policy, and thereafter commenced this action seeking a declaration that there is no coverage. Plaintiff subsequently moved for leave to enter a default judgment against each defendant on the ground that the summons and verified complaint had been properly served and defendants did not timely serve an answer or otherwise appear in the action. Supreme Court denied the motion with respect to Naz, Cliffside, and Kimba, and otherwise granted the motion.

“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]; see CPLR 3215 [f]). Here, plaintiff submitted sufficient proof of the facts constituting its claim through the affidavit of a claims representative establishing that Tahir and Naz failed to satisfy the notice requirement of the insurance policy, which constitutes a failure to comply with a condition precedent and vitiates the contract as a matter of law (see generally New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592-593 [2011]; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322 [2007]). Plaintiff also submitted proof of default in the form of “an affirmation from its attorney regarding . . . defendant[s’] default in appearing and answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726, 726 [2006]).

[*2] We further conclude, however, that plaintiff submitted sufficient proof of service of process, the remaining required element of proof, only with respect to Cliffside, a corporation, and thus the court erred in denying plaintiff’s motion to that extent. We therefore modify the order and judgment accordingly. Pursuant to CPLR 311 (a), “personal service on a corporation may be accomplished by, inter alia, delivering the summons ‘to 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’ ” (Rosario v NES Med. Servs. of N.Y., P.C., 105 AD3d 831, 832 [2013]). Here, “[t]he process server’s affidavit, which stated that the corporate defendant was personally served by delivering a copy of the summons and complaint to its ‘[authorized] agent’ and provided a description of that person, constituted prima facie evidence of proper service pursuant to CPLR 311 (a) (1)” (McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562, 562 [2007]; see Miterko v Peaslee, 80 AD3d 736, 737 [2011]; see generally Halas v Dick’s Sporting Goods, 105 AD3d 1411, 1413-1414 [2013]).

Contrary to plaintiff’s contention, the court properly denied its motion with respect to Naz, who was allegedly served by the “nail and mail” method of service. CPLR 308 (4) allows that method of service only “when service pursuant to CPLR 308 (1) and (2) cannot be made with due diligence” (Austin v Tri-County Mem. Hosp., 39 AD3d 1223, 1224 [2007]) and, although a process server’s affidavit of service ordinarily constitutes prima facie evidence of proper service, here the process server’s affidavit submitted by plaintiff fails to demonstrate the requisite due diligence (see D’Alesandro v Many, 137 AD2d 484, 484 [1988]; see generally Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929-930 [2008]). The affidavit failed to indicate whether there was an attempt to effectuate service at Naz’s actual “dwelling place or usual place of abode” (CPLR 308 [4]), and there is no indication that the process server made genuine inquiries to ascertain Naz’s actual residence or place of employment (see Prudence v Wright, 94 AD3d 1073, 1074 [2012]; Earle v Valente, 302 AD2d 353, 353-354 [2003]).

We also reject plaintiff’s contention that the court erred in denying its motion with respect to Kimba, a limited liability company. Plaintiff alleged that Kimba was served pursuant to Limited Liability Company Law § 304. That statute is substantively identical to Business Corporation Law § 307, and both statutes apply to foreign business entities not authorized to do business in New York. We conclude that, just as strict compliance with the procedures set forth in Business Corporation Law § 307 is required pursuant to Flick v Stewart-Warner Corp. (76 NY2d 50, 54-55, 57 [1990], rearg denied 76 NY2d 846 [1990]), strict compliance is likewise required for the procedures set forth in Limited Liability Company Law § 304 (see Elzofri v American Express Co., 29 Misc 3d 898, 901 [2010]). Here, plaintiff failed to establish that it strictly complied with the filing requirements of Limited Liability Company Law § 304 (e). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.

CV-9502-14/HU
C. Stephen Hackeling, J.

Petitioner moves, “pursuant to CPLR §7511 (b)(1)”, to vacate the award of Master Arbitrator Godson (petitioner’s Exhibit A), which upheld the arbitration award of arbitrator Thomas (petitioner’s Exhibit B).

Specifically, petitioner argues that the arbitrator “exceeded its power or so imperfectly executed it that a final and definite award on the subject matter submitted was not made”. Petitioner also requests a rehearing, [pursuant to CPLR §7511(d)] in the event the award is vacated, while respondent requests the award be confirmed. Upon denial of an application to vacate or modify an [*2]award, the Court is required automatically to confirm the award, eliminating the need for the party opposing such application to cross-move for confirmation. See, e.g., Blumenkopf v. Proskauer Rose, LLP, 2012, 95 AD3d 647 (N.Y.A.D. 1st Dept.); CPLR § 7511.

Subjection of this no-fault action to the arbitral process was semi-consensual, not compulsory. Under this process, the arbitrator’s award “is reviewed by the Master Arbitrator, under internal procedures promulgated or approved by the Superintendent of Insurance and such review is not restricted to the grounds of CPLR § 7511. The (subsequent) decision of the Master Arbitrator was then reviewed. Under Article 75 of the CPLR, the limited review grounds of CPLR §7511 do apply. “The rationale of the no-fault award . . . while a matter of primary concern to a Master Arbitrator, is of no moment to the Court and cannot be reviewed by it.” Seigel, NY Prac. § 601.

1-

CPLR § 7511 (b)(1) sets forth the exclusive grounds for vacating an arbitration award. Grounds to vacate under CPLR § 7511 (b)(1) are few and are narrowly applied. (See CPLR § 7511, Commentary C 7511:2). The specific list of grounds includes “corruption, fraud or misconduct . . . partiality of an arbitrator appointed as neutral, an arbitrator’s excess of power or imperfect execution such that a final an definite award. . . was not made (and) . . . failure to follow procedure [CPLR § 7511 (b)(1)]. Outside of the narrowly circumscribed exceptions . . . the Court lacks authority to review arbitration decisions, even where an arbitrator has made an error of law or has misapplied substantive law. Matter of Kowaleski v. New York State Dept. of Correctional Services, 16 NY3d 85 (NY 2010).

Errors of law and misapplication of substantive law generally do not suffice to permit the Court to disturb the arbitrator’s decision , Matter of Falzone v. New York Central Mutual Fire Ins. Co., 15 NY3d, 530 (NY 2010). Unless the parties’ agreement provides otherwise, an arbitrator need not apply the rules of evidence and is not bound by principles of substantive law . . . he may do justice as he sees it, applying his own sense of law and equity . . . to the facts as he finds them to be. Matter of Falzone v. New York Central Mutual Fire Ins. Co., supra. Even if an arbitrator “has made an error of law, Court’s generally may not disturb the arbitrator’s decision . . . Court’s are obligated to give deference to the decision of the arbitrator. . .” Matter of Falzone, supra. Accordingly, judicial review of arbitration awards is extremely limited. “An arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the Court’s should not assume the role of overseers to mold the award to conform to their sense of justice” (Matter of MBNA Am. Bank v. Karathanos, 65 AD3d 688, 883 NYS 2d 917, 918 (N.Y.A.D. 2nd Dept., 2009). “A Court may not usurp the arbitrator’s role by imposing its concept of a just and equitable result”. Matter of Local 345 of Retail Store Empls. Union v. Heinrich Motors, Inc.,

81 AD2d 1021 (N.Y.A.D., 4th Dept. 1981).

Manifest disregard of the law is not a basis [under CPLR § 7511 (b)] to vacate an arbitration award. Banc. of America Securities v. Knight, 4 Misc 3d 756 (Sup. Ct. NY County, 2004). “While irrationality’ is not explicitly set forth in CPLR § 7511(b) as a ground for vacating an award, the Court of Appeals recognizes it as a kind of adjunct of the excess of power provision”. Siegel, NY Prac. §602. An award that is contrary to settled law may be vacated, however same “will be upheld if there is any reasonable hypothesis to support it, such as where the issue is unsettled is subject to conflicting Court decisions”. RDK MEd., P.C. v. General Assur. Co., 8 Misc 3d 1025 (NY City Civ. Ct., 2005). A non mandatory arbitration award will be upheld unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation of the arbitrator’s powers . . . the arbitrator’s determination on issues of law, such as application of the statute of limitations as well as on issues of fact is conclusive, in absence of proof of fraud, corruption or other misconduct”. State Farm Auto Ins. Co. V. Harco Nat. Ins. Co., 29 Misc 3d 1229 (NY City Civ. Ct. 2010).

Upon review of the papers submitted including the arbitration transcript (provided by respondent), the Court finds no basis for disturbing the award. There was sufficient evidence in the record to support the award and a rational hypothesis to support the award, which found that the respondent established its defense [that provider, New Century Acupuncture, P.C. was not entitled to obtain payment for services by reason of violation of statutes regarding ownership and control of medical provider’s offices]. Petitioner has not established, as it contends, the grounds alleged in its Notice of Petition that “the arbitrator exceeded his power or so imperfectly executed it (such that) . . . a final and definite award . . . was not made”, nor has it shown entitlement for vacatur of the award for any of the specific grounds contained in CPLR § 7511.

2-

The Court specifically rejects petitioner’s argument that the arbitrator improperly applied the “preponderance” standard of proof to the respondent’s defense of improper licensing/control. Petitioner argues that the higher “clear and convincing” standard of proof should have been applied. “The essence of this defense (is that ) petitioner is ineligible to recover no-fault benefits due to petitioner’s failure to comply with New York State’s licensing requirements) . . . based on (petitioner’s) failure as a professional corporation to be owned and controlled only by licensed professionals . . .” Carothers v. Progressive Ins. Co., 42 Misc 3d 30 (App. Term, 2d, 11th & 13th Jud. Dists., 2013). The fact finder focuses on factors which determine whether the provider’s company is actually owned, co-owned or controlled by unlicensed individuals. 11 NYCRR 65 3.16(a)(12) provides that a health care provider is not eligible for reimbursement under section 1507 of the BCL if it fails to meet any applicable licensing requirement, whether at the time of its incorporation or thereafter. Although this defense is called “fraudulent incorporation”, it “truly poses [*3]an issue of the provider’s “ineligibility” to receive reimbursement, rather than fraud”. Tahir v. Progressive Cas. Ins. Co., 12 Misc 3d 657, 663, (NY City Civ. Ct. 2006). “While the word fraud is commonly used todescribe a Mallela defense, Mallela has nothing to do with common law fraud . . . In reality Mallela is akin to piercing the corporate veil”. Concourse Chiropractic, PLLC v. Sate Farm Ins. Co., 35 Misc 3d 1213 (Dist. Ct., Nassau, 2012).

In V.S. Medical Services, P.C., 11 Misc 3d 334 (NY City Civ. Ct. 2006), Judge Bluth rejected the application of the clear and convincing evidence standard to the respondent’s defense of lack of coverage/staged accident, stating that the respondent “need only come forward with evidence that rebuts (the) presumption of coverage . . . that is once the petitioner has made out its prima facie case, the burden of production ( also called the burden of going forward) on the issue of coverage falls upon the respondent and the respondent must demonstrate that it has a founded basis for believing that the alleged collision was intentionally caused. The burden of persuasion, however, remains on the petitioner who must prove its case by a fair preponderance of credible evidence . . . How much evidence must respondent produce to satisfy its burden of production? There is no magic formula, but it clearly must be enough to rebut the presumption that the injuries were caused by a covered accident, that is, a true accident . . . After all the evidence has been presented, the Court must decide whether the evidence of coverage preponderates in favor of the petitioner, the party who bears the burden of persuasion. V.S. Medical Services, P.C., supra. In Universal Open MRI of the Bronx, P.C. v. State Farm Mut. Auto Ins., 12 Misc 3d 1151 (A), (NY City Civ. Ct., 2006), Judge Velasquez also applied the preponderance of the evidence standard of proof to respondent’s evidence of a staged accident, and stated that although “our Appellate Courts commonly invoke the term “fraud” when discussing the defense of “staged accident” (which is actually a defense of lack of coverage), they are not necessarily discussing fraud.

The petitioner also argues that M.A. Godson “made his own factual determination regarding respondent’s EUO no show defense ” and “that M.A. Godson decided the EUO issue de novo”, as this issue was “never decided in the first instance” by arbitrator Thomas. Arbitrator Thomas’ report made factual findings that “respondent . . . sent the applicant two requests to appear for an EUO. . . and that respondent failed to appear thereat”. The arbitrator also discussed the timeliness of respondent’s EUO requests. The arbitration report failed to explicitly state that her award was based on respondent’s failure to appear at the EUO’s. Rather, her determination explicitly stated that respondent sufficiently established petitioner’s ineligibility to receive reimbursement by reason of petitioner’s fraudulent incorporation. Said report denied plaintiff’s claim in its entirety. The arbitrator, found that the respondent proved its complete defense justifying her award which denied petitioner’s claim entirely on said ground alone. It may have been clearer had the arbitrator explicitly stated that failure to attend the EUO’s was the second ground on which her report was based, however, it was unnecessary. The Court is of the opinion that this conclusion on the part of the arbitrator is implicit in her report and that the Master Arbitrator properly reviewed thethis issue but did not determine it factually, de novo.

3-

The Master Arbitrator’s award states one of the two issues it was reviewing was whether the no-fault arbitrator’s findings justified a conclusion that respondent properly denied applicant’s claims on the basis of failure to attend two EUO’s. The Master Arbitrator clearly found that the failure to attend the EUO’s was an appropriate reason for the no-fault arbitrator to have sustained the respondent’s denials. The Master Arbitrator also affirmed the arbitrator’s report in its entirety; finding that the arbitrator did not act in a arbitrary, capricious or irrational manner or contrary to law in denying the claim on the grounds of petitioners’ fraudulent incorporation.

In any event, even had the arbitrator held that respondent appeared at the EUO’s, and had it stated this in its report, and had the Master Arbitrator upheld such a finding, the ultimate result is unchanged, as the respondent prevailed entirely its fraudulent incorporation defense.

Petitioner’s final argument, regarding collateral estoppel was withdrawn by petitioner, at a conference with both counsel and the jurist present. Petitioner’s motion, based on this and other grounds, is denied.

Accordingly, the petition is denied. (CPLR §7511 (e)). The award is confirmed. The respondent may enter judgment pursuant to CPLR § 7514. Submit judgment.

________________________________

J.D.C.

Dated: June 18, 2015

4

Decided on June 17, 2015

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered March 4, 2014, as denied its motion for summary judgment dismissing the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation, for services rendered September 2, 2010 through November 23, 2010 and January 3, 2011 through March 14, 2011, in the amount of $2,220.

Per Curiam.

Order (James E. d’Auguste, J.), entered March 4, 2014, insofar as appealed from, reversed, with $10 costs, motion granted and the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation in the amount of $2,220, dismissed.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the first-party no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation (“plaintiff”) in the aggregate sum of $2,220, by establishing that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable issue. The affidavit of plaintiff’s treating physical therapist failed to meaningfully address the contrary findings made by defendant’s examining doctor, including the normal results of the range of motion testing of the assignor’s cervical and lumbar spine (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [1st Dept 2007]). Defendant’s remaining arguments, raised for the first time in its reply brief, are not entitled to consideration (Mehmet v Add2Net, Inc., 66 AD3d 437 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 16, 2015

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

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.

Plaintiff Metro Health Products, Inc. commenced this action to recover assigned first-party no-fault benefits for medical “services” (actually supplies) provided to its assignor as a result of injuries sustained in an automobile accident. Thereafter, defendant insurer commenced a declaratory judgment action in Supreme Court, Nassau County, against Metro Health Products, Inc. seeking a declaration that Nationwide Insurance was under no obligation to pay any of the outstanding claims mentioned therein. In an order dated December 5, 2012, the Supreme Court stated the following:

“[Nationwide]’s unopposed motion for a default judgment on this declaratory judgment action pursuant to CPLR § 3215 is granted, there being no opposition.

“Settle judgment on notice.”

Plaintiff subsequently moved, in the instant no-fault action, for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the instant action was barred by virtue of the Supreme Court’s order. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion “in light of [the] order entered [in] Supreme Court.”

Since the Supreme Court’s December 5, 2012 order in the declaratory judgment action did not make a declaration determining the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984] [requiring the court in a declaratory judgment action to make a declaration determining the rights of the parties involved in the dispute]; Lanza v Wagner, 11 NY2d 317, 334 [1962]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767{**48 Misc 3d at 87}[1989]), but rather directed the insurer to settle the judgment on notice (which [*2]defendant did not demonstrate that it had done), the order cannot be considered a conclusive final determination. Therefore, the Supreme Court order has no preclusive effect on the instant no-fault action (cf. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been denied. We note that, in any event, the declaratory judgment action apparently only included one of the four claims at issue in the instant no-fault action. We cannot pass on the issue, raised by plaintiff on appeal, of whether the motion made before the Supreme Court in the declaratory judgment action, or for that matter the action itself, is deemed abandoned pursuant to 22 NYCRR 202.48 (a), (b) (see Skeete v Bell, 292 AD2d 371 [2002]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted in support of its motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denial of claims that were conclusory, vague or without merit as a matter of law (see EMC Health Prods., Inc. v Travelers Ins. Co., 47 Misc 3d 133[A], 2015 NY Slip Op 50475[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff’s motion for summary judgment was properly denied.

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

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

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (David B. Cohen, J.), entered October 17, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (David B. Cohen, J.), entered October 17, 2013, insofar as appealed from, modified to grant defendant partial summary judgment dismissing the portion of the claims seeking reimbursement for acupuncture services rendered to the assignor; as modified, order affirmed, with $10 costs to defendant, and the matter remanded for further proceedings in accordance herewith.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims for acupuncture treatment rendered to plaintiff’s assignor, by submitting the independent medical examination [IME] report of its examining acupuncturist which set forth a sufficient factual basis and medical rationale for the conclusion that no further acupuncture treatment was medically necessary (see V.S. Care Acupuncture PC v MVAIC, 47 Misc 3d 126[A], 2015 NY Slip Op 50350[U] [App Term, 1st Dept]). Plaintiff’s opposing submissions, consisting of an attorney’s affirmation and the report of its examining doctor, which, as plaintiff concedes on appeal, did not mention, much less address the medical necessity of the acupuncture services rendered, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]). We remand the matter to Civil Court for a determination of the amount of the claims for acupuncture services, since defendant has failed to establish such amount in its motion papers.

We sustain so much of the order under review as denied defendant’s motion for summary judgment dismissing plaintiff’s remaining no-fault claims, since the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the medical services underlying these claims.

Decided on June 11, 2015

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 September 26, 2013. 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 affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for supplies it provided to its assignor for injuries he had sustained in a motor

In January 2012, plaintiff moved for summary judgment in the instant action, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the October 26, 2012 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered September 26, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the Civil Court correctly determined that the instant action is barred under the doctrine of res judicata by virtue of the October 26, 2012 Supreme Court order (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s [*2]order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2000]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

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