Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 27, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $1,498.09.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered March 27, 2019 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $1,498.09. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers’ compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

For the reasons stated in Ksenia Pavlova, D.O., as Assignee of David Wright v Global Liberty Ins. (— Misc 3d &mdash, 2021 NY Slip Op — [appeal No. 2019-1634 K C], decided herewith), the judgment is affirmed.

ALIOTTA, P.J., and GOLIA, J., concur.

ELLIOT, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

[*1]

Pavlova v Global Liberty Ins.

2021 NY Slip Op 50725(U) [72 Misc 3d 136(A)]

Decided on July 23, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 23, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-1661 K C

Ksenia Pavlova, D.O., as Assignee of Johanna Rosario, Respondent,

against

Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 27, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,807.40.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered March 27, 2019 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,807.40. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers’ compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

For the reasons stated in Ksenia Pavlova, D.O., as Assignee of David Wright v Global Liberty Ins. (— Misc 3d &mdash, 2021 NY Slip Op — [appeal No. 2019-1634 K C], decided herewith), the judgment is affirmed.

ALIOTTA, P.J., and GOLIA, J., concur.

ELLIOT, J., taking part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 18, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,111.94.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered April 18, 2019 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,111.94. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers’ compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

When 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 demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 493 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

In the present case, the record supports the finding of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. Consequently, we find no basis to disturb the Civil Court’s determination.

Accordingly, the judgment is affirmed.

ALIOTTA, P.J., and GOLIA, J., concur.

ELLIOT, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Christopher Stevens of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 13, 2019. The order, insofar as appealed from, denied plaintiff’s motion to vacate the administrative dismissal of the action and, upon such vacatur, for the entry of a default judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In or about October 2013, plaintiff commenced this action to recover, among other things, the principal sum of $485.52 in assigned first-party no-fault benefits for injuries its assignor sustained in a motor vehicle accident. In November 2013, a stipulation of discontinuance was entered into whereby the parties agreed that, by December 16, 2013, defendant would pay plaintiff the sum of $588.46, and, if defendant failed to do so, plaintiff, without notice, could seek entry of a default judgment pursuant to CPLR 3215 (i). It is uncontroverted that, as of December 16, 2013, defendant had only paid plaintiff the sum of $538.46. In August 2018, plaintiff filed papers with the court clerk seeking the entry of a default judgment in the total sum of $1,221.96. The filing was rejected because the action had been administratively dismissed. Thereafter, in March 2019, plaintiff moved to vacate the dismissal and, upon such vacatur, for the entry of a default judgment, arguing, among other things, that it was entitled to interest on the original sum sought, plus costs and disbursements. Defendant opposed the motion. By order dated June 13, 2019, the Civil Court denied the motion, but directed defendant to “pay the $50.00 difference between the payment made and the stipulation within 30 days.” Plaintiff appeals from so much of the order as denied its motion.

A default judgment can only be entered, pursuant to CPLR 3215 (i), in an action that is pending (see David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:21 [“the statute assumes the pendency of an action”]). In the case at bar, there is no indication in the record on appeal that defendant ever appeared in the action or answered the complaint. Moreover, the stipulation was not filed with the Civil Court, as it provided that it “may be filed with the Clerk of the Court without further notice only after issuance of service by mail of the within payments” (emphasis added), and the full amount due under the stipulation was concedely never paid. Therefore, it can reasonably be assumed that the action was administratively dismissed due to plaintiff’s failure to move for the entry of a default judgment within one year after defendant’s default in answering (see CPLR 3215 [c]).

“The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215 [c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]; see Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020 [2017]; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671 [2016]). The failure to timely move for the entry of a default judgment, however, may be excused upon a showing of sufficient cause which requires the plaintiff to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action (see Myoung Ja Kim v Wilson, 150 AD3d at 1020; HSBC Bank USA, N.A. v Grella, 145 AD3d at 671; Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764 [2015]). As plaintiff’s motion papers did not make a sufficient showing warranting the relief sought, we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion to vacate the dismissal of the complaint and, upon such vacatur, for the entry of a default judgment. We pass on no other issue.

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

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Law Office of David O’Connor, LLC (David O’Connor of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered April 18, 2018. The order, insofar as appealed from and as limited by the brief, failed to decide the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3126 and Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.17 (c), or, in the alternative, to strike the notice of trial, compel plaintiff to provide complete responses to defendant’s discovery demands and toll the accrual of no-fault statutory interest. By order entered April 18, 2018, the Civil Court denied the branch of defendant’s motion seeking to dismiss the complaint, granted the branches seeking to strike the notice of trial and compel discovery, and did not decide the branch seeking to toll the accrual of no-fault statutory interest.

Defendant’s appeal is limited by its brief to so much of the order as did not decide the branch of its motion seeking to toll the accrual of no-fault statutory interest. “However, no appeal lies from an order or portion thereof which fails to determine a motion or branch thereof (see Baez v First Liberty Ins. Corp., 95 AD3d 1250 [2012]). Thus, the branch of defendant’s motion which was not addressed by the Civil Court remains pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Katz v Katz, 68 AD2d 536, 542-543 [*2][1979])” (Quality Health Supply Corp. v Amica Mut. Ins. Co., 65 Misc 3d 157[A], 2019 NY Slip Op 51969[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). To the extent defendant, in a footnote in its brief, asks this court to review a subsequent order which addressed this issue, neither that order nor the underlying motion papers are in the record on appeal, and we decline the request without opining as to whether any such order would be reviewable upon this appeal (cf. CPLR 5517; Matter of Donato v Board of Educ. of Plainview, Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In view of the foregoing, we reach no other issue.

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Law Office of Gabriel & Moroff, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated December 16, 2019. The order, insofar as appealed from, denied branches of defendant’s motion seeking summary judgment dismissing certain claims and granted branches of plaintiff’s cross motion seeking summary judgment on certain claims.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted in its entirety and plaintiff’s cross motion for summary judgment is denied in its entirety.

In this action by a provider to recover assigned first-party no-fault benefits, the summons and complaint seek $7,570.30 for unspecified claims. Defendant moved for summary judgment dismissing the complaint, setting forth a chart listing 16 numbered bills it had received and denied, listing for each bill the date the services were rendered and the amount charged. The total sum of the listed bills was $4,318.49, $3,251.81 less than the amount sought in the complaint.

Defendant alleged that it had denied all of the bills based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs), and that it had denied bills 14 to 16 on the additional ground of lack of medical necessity. Defendant also stated that it had paid a claim of $3,253.92 for services rendered on September 1, 2016 in a separate arbitration, and attached that [*2]arbitration award and proof of its payment.^[FN1] Based on that arbitration award and payment, defendant argued that the $3,253.92 claim should not be recoverable in this action.

Plaintiff cross-moved for summary judgment. Plaintiff did not annex any bills or set forth any particular dates of service or amounts of claims. Instead, plaintiff referred to and annexed defendant’s chart of the 16 numbered bills. In an affirmation in support of its cross motion and in opposition to defendant’s motion, plaintiff’s attorney did not mention, let alone dispute, defendant’s assertions that the $3,253.92 claim was part of this action and that it had been paid.

By order dated December 16, 2019, the District Court denied the branches of defendant’s motion as to “bills 1-8 and 10-13” on defendant’s chart and granted plaintiff’s cross motion thereon.^[FN2]

In addition, the court stated that it was “undisputed that a $92.98 bill for the date of service (September 1, 2016) was resolved and paid in a separate arbitration case [] and should not be included herein. The $92.98 claim for bill #9 for September 1, 2016 is dismissed as resolved in a separate action.” The $92.98 amount set forth by the court does not match either the amount awarded to plaintiff in the separate arbitration referred to by defendant ($3,253.92) or the amount set forth on defendant’s chart for bill number 9 ($299.26), which did involve services rendered the same day as the services at issue in the arbitration, September 1, 2016. We conclude that in dismissing “bill #9,” the court meant to dismiss the $3,253.92 arbitration claim.

As to the bills denied solely on the ground of EUO nonappearance, the court, while acknowledging that defendant was not required to provide a reason for requesting an EUO in response to plaintiff’s objections thereto (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), nonetheless found that defendant was not entitled to summary judgment on this defense because it had treated plaintiff “as an adversary and created unnecessary obstruction to the claim process.”

The above-stated ground was not an appropriate basis to deny defendant’s motion as to the claims denied for failure to appear for an EUO. It is well settled that an appearance at a duly demanded EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Thus, as the proof submitted by defendant in support of its motion as to bills 1 through 13 was sufficient to establish that the initial and follow-up letters scheduling an EUO had been timely mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C., 35 AD3d 720), and that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond., 50 AD3d 1123), defendant was entitled to summary judgment dismissing bills 1 to 13.

Finally, we note that the District Court properly found, in effect, that the $3,253.92 claim should be dismissed, as it was undisputed that defendant had already paid plaintiff for that claim in a separate arbitration.

Consequently, based upon our review of so much of the order as was appealed from and upon the unchallenged findings of the District Court, we conclude that defendant is entitled to dismissal of the complaint in its entirety.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s motion for summary judgment dismissing the complaint is granted in its entirety and plaintiff’s cross motion for summary judgment is denied in its entirety.

RUDERMAN, P.J., GARGUILO and EMERSON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 22, 2021

Footnotes

Footnote 1: The amount of this claim, $3,253.92, is approximately the remaining balance of the amount sought in the compliant, $3,251.81.

Footnote 2: The court also granted defendant’s motion as to “bills #14-16,” and plaintiff has not cross-appealed from that part of the order or submitted a respondent’s brief.

Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co.

2021 NY Slip Op 04484 [197 AD3d 144]

July 21, 2021

Dillon, J.

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 22, 2021

[*1]

In the Matter of B.Z. Chiropractic, P.C., Respondent, v Allstate Insurance Company, Appellant.

Second Department, July 21, 2021

APPEARANCES OF COUNSEL

Peter C. Merani P.C., New York City (Adam Waknine of counsel), for appellant.

Amos Weinberg (Lynn Gartner Dunne, LLP, Mineola, NY [Kenneth L. Gartner] of counsel), for respondent.

Dillon, J.P.

This action invites us to address whether an advisory opinion or dicta in an order by a court qualifies under res judicata, collateral estoppel, or the law of the case doctrines to preclude a court in a later proceeding from considering the same issue. We hold that a court’s dicta is not subject to the preclusive effect of the doctrines of res judicata, collateral estoppel, or law of the case.

I. Relevant Facts

The underlying facts of this matter exhibit the signs of age and follow a somewhat unusual path, but are not particularly complex.

In 2000, B.Z. Chiropractic, P.C. (hereinafter BZ) commenced an action in the Civil Court, Queens County, against Allstate{**197 AD3d at 147} Insurance Company (hereinafter Allstate) to recover assigned first-party no-fault benefits (hereinafter the Civil Court action). On November 15, 2001, judgment was entered in favor of BZ and against Allstate in the amount of $8,847.49, which included both the amount of compensatory damages plus prejudgment interest, costs, and disbursements (hereinafter the 2001 judgment).

BZ did not seek to enforce the 2001 judgment until 2015. In 2015, counsel for BZ sent Allstate a letter demanding $229,981.66, reflecting the amount of the 2001 judgment plus compound postjudgment interest computed at 2% per month. Thereafter, Allstate paid BZ $8,842.49, and moved in the Civil Court for an order, inter alia, tolling the accrual of all postjudgment interest. The court, in an order dated November 16, 2015 (2015 NY Slip Op 32978[U] [Civ Ct, Queens County 2015]), held that BZ unreasonably allowed the accrual of compound interest for almost 15 years and that interest should not accrue for the period of November 1, 2005, through June 19, 2015. The result of the court’s order was to leave BZ entitled to only the amount of the original judgment plus interest accruing before and after the judicially-imposed tolling period.

With the interest that accrued before November 1, 2005, and after June 19, 2015, Allstate paid, inclusive of the original judgment, $22,999.70. Allstate then filed another motion in the Civil Court seeking, among other things, to compel BZ to file a satisfaction of judgment for the amount that was due and that Allstate had paid. In an order entered July 7, 2016, the court, among other things, directed the clerk to enter a satisfaction of judgment for the stated sum (see B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

BZ appealed both of the Civil Court orders to the Appellate Term for the 2nd, 11th, and 13th Judicial Districts. The only issues on appeal before the Appellate Term were whether interest should have been judicially tolled between November 1, 2005, and June 19, 2015, and whether a satisfaction of judgment should have been entered, as those were the issues that had been decided by the Civil Court in the orders appealed from. Apparently not placed before the Civil Court or the Appellate Term was any issue about the rate at which any such interest should be calculated, though in its submission, BZ incidentally mentioned that the rate was 2% per month as mandated by Insurance Law § 5106 and former 11 NYCRR 65.15 (h).

{**197 AD3d at 148}By decision and order dated August 18, 2017, the Appellate Term held that the Civil Court had erred in tolling the accrual of interest on the 2001 judgment on the ground that there was no evidence of any actions or conduct by BZ which prevented Allstate from timely paying the judgment (see B.Z. Chiropractic, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51091[U], *2). That portion of the Appellate Term’s decision is not at issue here. However, the Appellate Term also “note[d] that, contrary to [BZ’s] position, postjudgment interest should be calculated pursuant to CPLR 5004 and not at the two percent per month rate provided for in 11 NYCRR 65-3.9 (a)” (id.). The Appellate Term therefore, among other things, modified the Civil Court order entered July 7, 2016, to the extent of directing that the filed satisfaction of judgment be a mere partial satisfaction toward the new total amount due to BZ (see id.). The language of the Appellate Term’s decision, and the difference between the legal rate of interest under CPLR 5004 and the 2% per month rate of interest under Insurance Law § 5106 and 11 NYCRR 65-3.9 (a), are at the heart of the controversy that followed.

Thereafter, BZ moved in the Appellate Term for a clarification of its August 18, 2017 decision and order insofar as the interest rate language was concerned, and for leave to appeal to this Court. By decision and order on motion dated December 14, 2017, the Appellate Term granted BZ’s motion to the extent of clarifying that “it was this court’s intention to note that interest be awarded at the rate of nine percent per year as set forth in CPLR 5004” (see 2017 NY Slip Op 96378[U], *1). In the same order, the Appellate Term denied leave to appeal to this Court because the portion of its August 18, 2017 decision and order which BZ sought to appeal was “advisory” and not appealable as of right or by permission (id.). In other words, by its own description, the Appellate Term’s mention that interest be calculated at the 9% rate of CPLR 5004 was not a determination rendered on the merits.

BZ, perhaps frustrated that it was denied an appellate remedy on the issue of the proper rate of interest on the judgment, filed a separate motion with this Court, for leave to appeal the Appellate Term’s orders. By decision and order on motion dated March 2, 2018 (2018 NY Slip Op 65687[U]), this Court denied BZ’s motion for leave to appeal. While this Court did not explain its reason for denying leave to appeal, it would make sense for our Court to have denied leave because “advisory opinions” outside the scope of the litigated issues are not appealable{**197 AD3d at 149} as of right or by permission (see Bennett v State Farm Fire & Cas. Co., 189 AD3d 748 [2020]; Thornhill v Degen, 185 AD3d 982, 983 [2020]).

By notice of petition dated May 18, 2018 (hereinafter the first petition), BZ commenced a hybrid turnover proceeding pursuant to CPLR 5225 against Allstate in the Supreme Court, Queens County, seeking the turnover of monies from Allstate’s bank account maintained outside New York in such sum sufficient to satisfy the 2001 judgment, and action for a judgment declaring that the 2001 judgment accrued interest at the rate of 2% per month compounded. By [*2]order entered November 16, 2018, the Supreme Court dismissed the first petition for improper service of process.

Thereafter, BZ commenced the instant hybrid turnover proceeding pursuant to CPLR 5225 and action for declaratory relief against Allstate in the Supreme Court, Queens County, seeking the same relief that BZ had sought with the first petition. The petition/complaint in the instant proceeding/action was specifically denominated as seeking a declaratory judgment and order that Allstate pay the underlying judgment at an interest rate of 2% per month, compounded (see CPLR 3001). In effect, BZ’s turnover proceeding/action sought to ignore the Appellate Term’s “advisory opinion” that interest be computed at the 9% annual rate of CPLR 5004, by instead calculating interest upon the higher rate of 2% per month as defined by Insurance Law § 5106 and former 11 NYCRR 65.15 (h). Allstate cross-petitioned for, inter alia, dismissal of the proceeding/action on the grounds of res judicata and collateral estoppel based upon the Appellate Term’s earlier determinations that interest should be calculated at the 9% rate. The cross petition also sought to impose monetary sanctions against BZ pursuant to 22 NYCRR 130-1.1 for having commenced a frivolous proceeding/action otherwise barred by the doctrines of res judicata and collateral estoppel.

By order entered March 8, 2019 (62 Misc 3d 1223[A], 2019 NY Slip Op 50241[U] [Sup Ct, Queens County 2019]), the Supreme Court denied that branch of BZ’s petition/complaint which was to turn over monies in Allstate’s bank account because the bank was not a party as required by CPLR 5225 (b). However, to the extent the hybrid proceeding/declaratory judgment action sought a judgment declaring the proper rate of postjudgment interest, which did not involve the nonparty bank, the court granted that branch of the petition/complaint,{**197 AD3d at 150} holding that BZ was entitled to a judgment declaring that the 2001 judgment accrued interest at the rate of 2% per month compounded. The court denied Allstate’s cross petition.

Allstate moved for leave to renew and reargue its cross petition. In support of that branch of its motion which was for leave to renew, Allstate contended that BZ had sought the same relief in the first petition, which had been dismissed for improper service of process. Allstate argued, in support of that branch of its motion which was for leave to reargue, that BZ’s proceeding/action was barred by res judicata, collateral estoppel, and, for the first time during the various litigations, the doctrine of law of the case.

In an order entered April 22, 2019 (2019 NY Slip Op 34167[U] [Sup Ct, Queens County 2019]), the Supreme Court denied that branch of Allstate’s motion which was for leave to renew. It determined that Allstate’s stated basis for that branch of its motion, regarding the earlier procedural dismissal, did not involve new evidence or a change in the law, citing Delvecchio v Bayside Chrysler Plymouth Jeep Eagle (271 AD2d 636 [2000]). The court likewise denied the separate branch of the motion that sought leave to reargue, on the ground that the court had not earlier misapprehended relevant facts or misapplied controlling principles of law.

Allstate now appeals from so much of the March 8, 2019 order as granted that branch of the petition/complaint which was for a judgment declaring that the 2001 judgment accrued postjudgment interest at the rate of 2% per month compounded and as denied its cross petition. Allstate also appeals from the April 22, 2019 order.

II. Legal Analysis

We affirm the order entered March 8, 2019, insofar as appealed from, and the order entered April 22, 2019, insofar as reviewed.

A. The Supreme Court properly determined BZ’s prayer for a declaratory judgment.

Allstate argues on appeal that BZ’s commencement of a declaratory judgment action in the Supreme Court was merely a guise to make an end run around the Appellate Term determinations in the Civil Court action. As discussed below, since the Supreme Court had the authority to entertain the issue of postjudgment interest in an action for a declaratory judgment, and since the Appellate Term’s discussion of the applicable{**197 AD3d at 151} rate of interest was merely “advisory,” BZ’s filing, rather than representing an end run, may instead be viewed as good lawyering under the unusual circumstances of the parties’ procedural history.

BZ’s petition/complaint was a hybrid turnover proceeding (see CPLR 5225 [b]) and a declaratory judgment action (see CPLR 3001). A judgment creditor who seeks to satisfy a judgment from assets that are not in the possession of the judgment debtor may commence an expedited CPLR 5225 turnover proceeding (see Matter of Sirotkin v Jordan, LLC, 141 AD3d 670, 671 [2016]; Matter of Miraglia v Essex Ins. Co., 96 AD3d 945 [2012]; Matter of Signature Bank v HSBC Bank USA, N.A., 67 AD3d 917, 918 [2009]). Here, BZ’s proceeding sought the turnover of money maintained [*3]by Allstate’s bank, Bank of America, N.A. (hereinafter BANA), which was not made a party to the proceeding/action. The Supreme Court properly dismissed that branch of BZ’s petition/complaint due to the absence of BANA as a party.

[1] Doing so, however, did not require dismissal of the declaratory judgment portion of the hybrid action/proceeding, as the litigation and adjudication of such hybrid matters is not uncommon (see e.g. Matter of East W. Bank v L & L Assoc. Holding Corp., 144 AD3d 1030, 1032 [2016]; Shipman v City of N.Y. Support Collection Unit, 183 Misc 2d 478, 483 [Sup Ct, Bronx County 2000]). In a declaratory judgment action, the court does not direct a party to do an act or refrain from doing an act, but merely declares the prevailing party’s rights with respect to the matter in controversy for the purpose of guiding future conduct, and then, as once colloquially described by Professor David Siegel, “let[s] things go at that” (Siegel & Connors, NY Prac § 436 at 840 [6th ed 2018]; see CPLR 3001). CPLR 103 (c) vests the Supreme Court with authority to convert an improperly-commenced proceeding into a declaratory judgment action (see Matter of Diamond Asphalt Corp. v Sander, 92 NY2d 244, 253 [1998]; Matter of Lewis Tree Serv. v Fire Dept. of City of N.Y., 66 NY2d 667, 669 [1985]). Here, the issues involved in the dismissed turnover proceeding were easily severable from the freestanding issue of the appropriate rate of interest that was to accrue on the judgment, and did not require BANA as a party.

Moreover, CPLR 3001 uniquely vests the Supreme Court with authority to render declaratory judgments to the exclusion of other courts of the state. Parenthetically, civil courts{**197 AD3d at 152} are vested with jurisdiction to render declaratory judgments regarding the obligation of an insurer to defend or indemnify a defendant in an action (see CCA 212-a [a]; Fresh Acupuncture, P.C. v Interboro Ins. Co., 56 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), but that jurisdiction is not applicable here. Therefore, to the extent BZ wished to obtain a declaratory judgment governing the rate of interest on its judgment, and with appellate remedies correctly foreclosed, the Supreme Court was the only court where it could seek redress on that issue. The Supreme Court’s subject matter jurisdiction was not circumscribed by the fact that prior, related proceedings had been pending in the Civil Court, Queens County (see Abed v Zach Assoc., 124 AD2d 531, 532 [1986]; see also Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705 [2010]).

B. Determining the rate of interest de novo was not precluded by the doctrines of res judicata, collateral estoppel, or law of the case.

Allstate failed to establish that the declaratory relief BZ sought as to the applicable rate of interest was barred by the doctrines of res judicata, collateral estoppel, or law of the case.

Res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were already decided (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13 [2008]; Matter of Grainger [Shea Enters.], 309 NY 605, 616 [1956]). The doctrine requires that there be a judgment on the merits from a prior action between the same parties involving the same subject matter (see Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Matter of Hunter, 4 NY3d 260, 270 [2005]; see also Puryear v Hutchinson, 175 AD3d 521, 522 [2019]).

The related doctrine of collateral estoppel, which is narrower, precludes a party from relitigating a particular issue where the identical issue has already been decided in the prior action, is decisive in the present action, and where the party to be precluded had a full and fair opportunity to contest the issue in the prior proceeding (see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]; Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; Mahler v Campagna, 60 AD3d 1009, 1011 [2009]; Sherman v DeRosa, 34 AD3d 782, 782-783 [2006]).

“The doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in{**197 AD3d at 153} [a] prior decision [of the court], and to the same questions presented in the same case” (Deutsche Bank Natl. Trust Co. v Gambino, 181 AD3d 558, 559 [2020] [internal quotation marks omitted]; Mosby v Parilla, 140 AD3d 1129, 1130-1131 [2016]). The doctrine articulates a sound policy that once an issue is judicially determined, that should be the end of the matter as far as judges and courts of coordinate jurisdiction are concerned (see Matter of Oyster Bay Assoc. Ltd. Partnership v Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966 [2005]; Mosby v Parilla, 140 AD3d at 1130-1131).

[2] Here, the Appellate Term’s expression in its decision and order dated August 18, 2017, regarding the applicable rate of interest was not determined on the merits, but was instead merely advisory. The reasons are threefold. The first reason is that the Appellate Term’s reference [*4]to the applicable rate of interest as being that of CPLR 5004, and not that of former 11 NYCRR 65.15 (h), was never litigated by the parties on the merits either in the Civil Court from which the appeal came, nor in the Appellate Term to which the appeal went. The Appellate Term’s reference to the CPLR 5004 rate of interest was, under the circumstance of that appeal, sua sponte and gratuitous. The rate of interest was not an issue in the Civil Court action, as that action did not involve a controversy over the rate of interest but merely involved whether interest had been equitably forfeited.

The second, independent reason that the Appellate Term’s mention of CPLR 5004 interest was merely advisory involves its own description of its thinking on the issue, as set forth in the language of its decision and order on motion dated December 14, 2017. BZ had filed a motion in the Appellate Term for a “clarification” of the interest rate language in the Appellate Term’s prior decision and order of August 18, 2017. BZ’s motion was not that of renewal or reargument (see CPLR 2221 [d], [e]), and therefore, did not bring the merits of the proper rate of interest through the court’s backdoor. The Appellate Term “clarified” in its order dated December 14, 2017, that its mention of awardable interest at the CPLR 5004 rate “was advisory.” We should take the Appellate Term at its word, that its intent was to refer to CPLR 5004 in an advisory manner only.

The third reason that the Appellate Term’s language about CPLR 5004 interest was advisory involves the appellate remedies that BZ sought and which were denied. In its motion for{**197 AD3d at 154} “clarification,” BZ had also moved for leave to appeal the decision and order dated August 18, 2017, to this Court. The Appellate Term denied that relief on the ground that its mention of CPLR 5004 was merely advisory. BZ, perhaps frustrated that it was denied a further appellate remedy by the Appellate Term, filed a successor motion with this Court, seeking leave to appeal. This Court likewise denied that motion. While this Court did not explain the reasons for its denial, the determination can be easily explained by the Appellate Term’s description of its CPLR 5004 language as having been merely “advisory,” which, as noted, is not appealable by right or permission (see Bennett v State Farm Fire & Cas. Co., 189 AD3d 748 [2020]; Thornhill v Degen, 185 AD3d at 983).

Thus, the Appellate Term has unambiguously described its mention of the CPLR 5004 rate of interest as being advisory only. Courts of New York do not issue advisory opinions for the fundamental reason that in this state “ '[t]he giving of such opinions is not the exercise of the judicial function’ ” (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988], quoting Self-Insurer’s Assn. v State Indus. Commn., 224 NY 13, 16 [1918, Cardozo, J.]; see also Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehs., 127 AD3d 1049 [2015]), as our courts instead resolve controverted questions of fact and law affecting parties’ present interests (see Lewis v City of Gloversville, 246 AD2d 804, 805 [1998]; Gish v Village of Peekskill, 255 App Div 706 [1938]). However, even Hannibal and his troops crossed the Alps once, as did the Appellate Term euphemistically here. There is no plausible way of construing the Appellate Term’s discussion of CPLR 5004 interest as anything other than what the Appellate Term described it as being—an advisory opinion rather than a determination of an issue litigated by the parties on the merits.

Thus, in the instant proceeding at issue here, Allstate was unable to establish that there was a determination on the merits in any prior proceeding about the proper rate of interest applicable to the judgment, as to preclude the Supreme Court from considering the issue de novo (see Puryear v Hutchinson, 175 AD3d at 522). Contrary to Allstate’s contentions, the applicable rate of accruable postjudgment interest upon the 2001 judgment was not “decided” on the merits in the Civil Court or the Appellate Term (see Ryan v New York Tel. Co., 62 NY2d at 500), and the Appellate Term’s advisory opinion on the rate of interest is not entitled to the preclusive effects of the doctrines{**197 AD3d at 155} of res judicata, collateral estoppel, or law of the case (see Jeffreys v Griffin, 1 NY3d 34, 39 [2003] [as to collateral estoppel]; Madden v Town of Greene, 95 AD3d 1426, 1428 [2012] [as to law of the case]; Town of E. Hampton v Omabuild USA No. 1, 215 AD2d 746, 750 [1995] [as to collateral estoppel]; Thiebeau v Wahl, 91 AD2d 869 [1982] [as to res judicata]). Similar reasoning has been applied to expressions of dicta, as distinguished from advisory opinions, which also do not trigger the doctrines of res judicata (see Sherb v Monticello Cent. Sch. Dist., 163 AD3d 1130, 1132 [2018]; Congress Talcott Corp. v Pacemakers Trading Corp., 177 AD2d 459, 459-460 [1991]), collateral estoppel (see Jackson v Board of Educ. of City of N.Y., 30 AD3d 57, 59-60 [2006]; Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, 668 [2000]; Town of E. Hampton v Omabuild USA No. 1, 215 AD2d at 750), or law of the case (see Donahue v Nassau County Healthcare Corp., 15 AD3d 332, 333 [2005]).

C. The Supreme Court properly determined that the applicable rate of interest [*5]is 2% per month compounded.

The Supreme Court, having properly determined that the orders of the Appellate Term did not preclude its de novo consideration of the proper rate of interest on the judgment, then also properly held that postjudgment interest on the 2001 judgment accrued at the rate of 2% per month, compounded.

As a general matter, the language of general statutes are to yield to the language of specific ones (see McKinney’s Cons Laws of NY, Book 1, Statutes § 238; Matter of Ford v New York State Racing & Wagering Bd., 107 AD3d 1071, 1078 [2013], affd 24 NY3d 488 [2014]; J. N. Futia Co. v Schenectady Municipal Hous. Auth., 33 AD2d 591 [1969]). In any event, CPLR 5004 expressly provides that “[i]nterest shall be at the rate of nine per centum per annum, except where otherwise provided by statute” (emphasis added), allowing for the recognition of statutes that may control certain interest calculations in more narrowly-defined areas of law.

Insurance Law § 5106 (a) provides, in relevant part, that “[p]ayments of first party benefits and additional first party benefits shall be made as the loss is incurred[,] [s]uch benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained[,] . . . [and] [a]ll overdue payments shall bear interest at the rate of two percent per month” (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 494 [2006]). Under former 11 NYCRR 65.15 (h), which was in effect{**197 AD3d at 156} at the time of the underlying accident in 1999, “[a]ll overdue mandatory and [additional] personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, compounded and calculated on a pro rata basis using a 30-day month” (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]; Cardinell v Allstate Ins. Co., 302 AD2d 772, 774 [2003]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338, 339 [1994]). The regulation was recodified as of April 5, 2002, as 11 NYCRR 65-3.9, so that more recent decisional authorities refer to the recodified number. The objective of the statute and regulation is to assure the prompt and full payment of economic claims, with the infliction of a monetary sanction or penalty on those insurers which do not comply (see Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [1984]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009]; Cardinell v Allstate Ins. Co., 302 AD2d at 774). Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which were specific directives, supersede the interest provisions contained in CPLR 5004, the more general statute (see Smith v Nationwide Mut. Ins. Co., 211 AD2d 177, 181 [1995]; Matter of McMillan [Unionamerica Reins. Co.], 70 AD2d 659, 659 [1979]; Matter of Government Empls. Ins. Co. [Lombino], 57 AD2d 957, 959 [1977]; Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67, 70 [Sup Ct, NY County 1988]).

[3] Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h) directly apply to the dispute and judgment in controversy in this action. Accordingly, the Appellate Term’s advisory opinion in the decision and order dated August 18, 2017, and the decision and order on motion dated December 14, 2017, that the postjudgment interest here was governed by CPLR 5004, was incorrect on the law. To the extent that opinions from the Appellate Term provide otherwise as to the proper rate of interest, they generally should no longer be followed in applicable instances.

D. There was no reason or opportunity for BZ to earlier litigate the rate of interest to which it was entitled as to trigger res judicata or collateral estoppel against it.

Our dissenting colleague correctly notes that the $8,847.49 judgment rendered in BZ’s favor was silent as to both an expressed award of postjudgment interest and its rate of computation. CPLR 5003 statutorily entitled BZ to a postjudgment award of interest as a matter of law, and the judgment{**197 AD3d at 157} would have been better entered had it mentioned the postjudgment rate. Our colleague would hold that since the omission of postjudgment interest was apparent on the face of the judgment, and issues regarding its equitable tolling were litigated at the Civil Court, BZ could have, and should have, litigated its entitlement to calculated interest under Insurance Law § 5106 and former 11 NYCRR 65.15 (h) during those times, when it had the opportunity, and that BZ’s failure to use those opportunities triggers the preclusive effect of res judicata and collateral estoppel (see Matter of Hunter, 4 NY3d at 269; Buechel v Bain, 97 NY2d at 303-304; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]).

We disagree. One reason for disagreement is that BZ would have had no reason to believe that it would receive interest, at whatever point in the postjudgment time line, other than at [*6]the 2% per month rate required as a matter of law by Insurance Law § 5106 and former 11 NYCRR 65.15 (h). The remedies of CPLR 5019 (a) were simply not required, whether the right to interest in the underlying action be cast as a substantive or a nonsubstantive right.

Another equally important reason for our disagreement with our colleague involves an issue of mathematics rather than law. When Allstate paid the initial amount of $8,842.49, and made a subsequent payment of $14,157.21, to bring its combined total to $22,999.70, the interest paid at those times by Allstate reflects, by mathematical computation of dates and rates, a 2% per month rate of interest, compounded. Taking into account the judicially-imposed tolling period, there were 53 months for which interest was owed between the entry of the judgment on November 15, 2001, and November 1, 2005, and between June 19, 2015, and the payment of $14,157.21 on December 1, 2015, which was a pure-interest payment. Two percent interest for each of those months, with a modest additional sum for compounding, explains how the $14,157.21 payment was computed. This means that for many years prior to and into December 2015, there was never any controversy between the parties as to the proper rate of compounded interest that was to be applied to the judgment. By its actions, Allstate, in paying interest computed at 2% per month compounded, agreed with BZ that the proper rate was that required by Insurance Law § 5106 and former 11 NYCRR 65.15 (h). Had Allstate believed that the proper rate of postjudgment interest was 9% per year, it would have tendered a much{**197 AD3d at 158} smaller sum on December 1, 2015, representing the lesser annual 9% CPLR amount.

Only after Allstate had paid BZ the interest of $14,157.21, computed at 2% per month compounded, did Allstate then file a motion in the Civil Court seeking to compel the filing of a satisfaction of judgment. The filing of a satisfaction of judgment raised nothing more than a procedural issue for the court. At that point in time, there was still no controversy between the parties about the rate of interest owed on the underlying judgment. BZ had no reason at that time to raise any issue about the rate of interest in the absence of any controversy over it. Indeed, it might have been frivolous for BZ to have raised at that time the issue of the rate of interest, as the interest had been paid by Allstate using the higher 2% per month rate compounded and represented no controversy. The applicable interest rate remained a nonissue as the parties’ litigation proceeded from the Civil Court to the Appellate Term over whether interest should have been equitably tolled, having nothing to do with the rate of its computation.

Controversy over the proper rate of interest never arose until it was created, sua sponte, by the Appellate Term’s gratuitous advisory language in its decision and order dated August 18, 2017. As noted, the Appellate Term’s advisory language about its suggested rate of interest was incorrect as a matter of law. Upon the issuance of the August 18, 2017 decision and order, BZ promptly sought to litigate the point by filing a motion for a clarification, and prosecuted two motions at both the Appellate Term and this Court for leave to appeal to this Court. Therefore, and contrary to the view of our dissenting colleague, this is not a circumstance which is sometimes seen in the subject area of res judicata or collateral estoppel, where a party had an “opportunity” to litigate an issue so as to be precluded from doing so in a later proceeding. There was no dispute about the proper rate of interest for the parties to actually litigate until one was unnecessarily created by the Appellate Term on August 18, 2017. This Court denied leave to appeal on March 2, 2018. The first petition filed by BZ in the Supreme Court seeking, inter alia, a declaratory judgment as to the proper rate of interest was filed only 21/2 months later.

Our dissenting colleague raises concerns about the operation of CPLR 5019 (a) upon the underlying judgment, and whether the declaratory judgment represents an improper collateral attack upon the 2001 judgment itself. Arguments as to those issues{**197 AD3d at 159} were never advanced by Allstate in the Supreme Court and are unpreserved for appellate review (see Century Sur. Co. v All In One Roofing, LLC, 154 AD3d 803, 808 [2017]; Weber v Jacobs, 289 AD2d 226, 227 [2001]). Moreover, they are not even raised by any party on appeal and are therefore not properly before us (see Reborchick v Broadway Mall Props., Inc., 10 AD3d 713, 714 [2004]; Matter of Commissioner of Social Servs. v Clarke, 298 AD2d 519, 520 [2002]). “For us now to decide [an] appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play” (Misicki v Caradonna, 12 NY3d 511, 519 [2009]). This concept has been recognized by our own Court frequently, including in recent decisional pronouncements (see e.g. Kaufman v Kaufman, 189 AD3d 31, 69 [2020] [“(W)e are required to decide this case solely with reference to the arguments actually made by the part(y) on the record as it stands”]; Matter of Cassini, 182 AD3d 13, 42 [2020]; Green Tree Servicing, LLC v Molini, 171 AD3d 880, 882 [2019]; Levin v State of New York, 32 AD3d 501, 503 [2006]; Tammaro v County of Suffolk, 224 AD2d 406, 407 [1996]).

[*7]

In any event, the judgment was never collaterally attacked, as its terms were never amended by any court that would subject it to CPLR 5019 (a) analysis. The judgment awarded BZ what it was entitled to in terms of its claim, prejudgment interest, costs, and disbursements, and the Supreme Court’s declaratory judgment merely declared the rate of postjudgment interest to which BZ had always been statutorily entitled, and which BZ had actually received from Allstate during the period of time for which interest was actually paid.

E. Allstate’s Motion for Leave to Renew and Reargue

In its order entered April 22, 2019, the Supreme Court properly denied that branch of Allstate’s motion which was for leave{**197 AD3d at 160} to renew its cross petition. The dismissal of the first petition for improper service of process was not a “new fact” that would have affected the court’s earlier determination (see Vega v Gambino, 184 AD3d 600, 601-602 [2020]; Matter of O’Gorman v O’Gorman, 122 AD3d 744, 745 [2014]). In any event, the dismissal of the first petition for improper service of process is not a dismissal on the merits (see Kokoletsos v Semon, 176 AD2d 786, 787 [1991]; Colbert v International Sec. Bur., 79 AD2d 448, 465 [1981]), and fails to raise, in and of itself, the defenses of res judicata, collateral estoppel, or law of the case.

The appeal from so much of the order entered April 22, 2019, as denied that branch of Allstate’s motion which was for leave to reargue its cross petition, must be dismissed, as no appeal lies from an order denying reargument (see Matter of Rosenberg v Schwartz, 176 AD3d 1069, 1070 [2019]; Gentry v Mean, 166 AD3d 583 [2018]).

F. The Supreme Court properly denied that branch of Allstate’s cross petition which was for sanctions.

In the order appealed from entered March 8, 2019, the Supreme Court denied that branch of Allstate’s cross petition which was to impose sanctions against BZ pursuant to 22 NYCRR 130-1.1 for commencing a frivolous proceeding.

Contrary to Allstate’s contention, BZ’s proceeding was not frivolous. BZ prevailed on the merits in the order appealed from on the issues of res judicata, collateral estoppel, law of the case, and the proper rate of statutory interest. Even if we held otherwise, the parties’ unique procedural history and the issues raised before the Supreme Court were facially arguable and not subject to the imposition of sanctions (see Stow v Stow, 262 AD2d 550, 551 [1999]).

III. Miscellaneous

The parties’ remaining contentions either are without merit or need not be reached in light of our determinations.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment, among other things, declaring that postjudgment interest on the judgment entered on November 15, 2001, in favor of BZ and against Allstate in the amount of $8,847.49 accrued at the rate of 2% per month compounded (see Lanza v Wagner, 11 NY2d 317, 334 [1962]).

IV. Conclusion

In light of the foregoing, the order entered March 8, 2019, is affirmed insofar as appealed from, and the order entered April 22, 2019, is affirmed insofar as reviewed.

Connolly, J., concurs in part and dissents in part, and votes to modify the order entered March 8, 2019, on the law, (1) by deleting the provision thereof granting that branch of the petition/complaint which was for a judgment declaring that a judgment in favor of B.Z. Chiropractic, P.C. and against Allstate{**197 AD3d at 161} Insurance Company entered November 15, 2001, in the Civil Court, Queens County, accrued interest at the rate of 2% per month compounded, and substituting therefor a provision denying that branch of the petition/complaint, and (2) by deleting the provision thereof denying that branch of the cross petition of Allstate Insurance Company which was to dismiss the proceeding/action, and substituting therefor a provision granting that branch of the cross petition, and, as so modified, to affirm the order entered March 8, 2019, insofar as appealed from, to dismiss the appeal from so much of the order entered April 22, 2019, as denied those branches of the motion of Allstate Insurance Company which were for leave to reargue and for leave to renew that branch of the cross petition which was to dismiss the proceeding/action, and to affirm the order entered April 22, 2019, insofar as reviewed, with the following memorandum:

I respectfully dissent in part because, in my view, a plenary proceeding in Supreme Court is an inappropriate vehicle to determine the rate at which postjudgment interest accrues on a Civil Court judgment. Review of that issue is, in my view, barred by the doctrines of res judicata and collateral estoppel, and should have been rejected as an improper collateral attack on a judgment rendered by another court.

I.

On or about November 1, 2000, B.Z. Chiropractic, P.C. (hereinafter BZ) commenced an action against the defendant Allstate Insurance Company (hereinafter Allstate) in the Civil Court, Queens County, to recover assigned no-fault benefits in the principal sum of $3,585.16. BZ also sought attorney’s fees, “interest at 2 percent per month from Aug. 2, 1999, compounded monthly,” and costs. Allstate answered. In an order dated October 24, 2001, the court awarded the plaintiff summary judgment. On November 15, 2001, the Clerk of the Civil Court entered judgment in favor of BZ and against Allstate in the sum of $8,847.49, which sum included $2,775 prejudgment interest at a rate of 2% per month. The judgment is silent as to the rate at which postjudgment interest is to accrue.

By letter dated June 10, 2015, BZ’s attorney wrote to Allstate, attaching a copy of the unsatisfied judgment, demanding payment of the $8,847.49 judgment, plus $221,134.17 postjudgment interest, calculated at a rate of 2% per month.

Allstate tendered two checks to BZ, both dated July 16, 2015, in the sums of $7,852.49 and $990, respectively, which BZ presented{**197 AD3d at 162} for payment, adding “without prejudice” to its endorsement.

Allstate moved in the Civil Court, inter alia, for a protective order, modification of the judgment, and a discharge, claiming that BZ unreasonably delayed in enforcing the judgment for nearly 15 years. In an order dated November 16, 2015 (2015 NY Slip Op 32978[U] [Civ Ct, Queens County 2015]), the court granted Allstate’s motion to the extent of holding that interest would not accrue from November 1, 2005, through June 19, 2015.

Allstate tendered BZ a check dated December 1, 2015, in the sum of $14,157.21, which BZ presented for payment “without prejudice.”

Thereafter, Allstate moved, among other things, to compel the issuance of a satisfaction of judgment. In an order entered July 7, 2016, the Civil Court directed the Clerk to enter a satisfaction of judgment.

BZ appealed the November 16, 2015 and July 7, 2016 orders to the Appellate Term for the 2nd, 11th, and 13th Judicial Districts. In a decision and order dated August 18, 2017, the Appellate Term held that the Civil Court erred in tolling the interest on the judgment and, therefore, Allstate was only entitled to a partial satisfaction of judgment. Further, the Appellate Term stated: “We note that, contrary to [BZ’s] position, postjudgment interest should be calculated pursuant to CPLR 5004 and not at the two percent per month rate provided for in 11 NYCRR 65-3.9” (56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

BZ moved for clarification of the Appellate Term’s order or, in the alternative, for leave to appeal to this Court. In a decision and order on motion dated December 14, 2017, the Appellate Term held: “the branch of the motion seeking clarification is granted to the extent of clarifying that it was this court’s intention to note that interest be awarded at the rate of nine percent per year as set forth in CPLR 5004” (see 2017 NY Slip Op 96378[U], *1). The Appellate Term further held: “the branch of the motion seeking leave to appeal to the Appellate Division is denied without prejudice to appellant’s other remedies, if any, as the portion of this court’s decision and order which appellant seeks to appeal is advisory and is not appealable as of right or by permission” (id.).

{**197 AD3d at 163}BZ moved in this Court for leave to appeal the Appellate Term’s order dated August 18, 2017. This Court, without opinion, denied leave to appeal (2018 NY Slip Op 65687[U]).

II.

Having received an unfavorable ruling on the issue of the rate of postjudgment interest from the Appellate Term, and been denied leave to appeal that ruling to this Court, BZ turned to the Supreme Court, Queens County, as a new potential avenue for relief.

On December 28, 2018, in a pleading denominated as a petition (hereinafter the petition), BZ commenced this proceeding/action in Supreme Court, Queens County, against Allstate

“for a declaratory judgment and order pursuant to CPLR 5225 against Allstate . . . , directing Allstate . . . to turn over monies from its bank account maintained outside New York State with Bank of America, N.A. in such sum as is sufficient to satisfy the judgment, and determining that the judgment has and continues to accrue interest . . . at the rate of 2% per month compounded” (emphasis added).

The petition alleged that the Appellate Term’s decision and order dated August 18, 2017, was ambiguous as to the rate that postjudgment interest accrued on the judgment. The petition urged that the Appellate Term’s opinion as to the rate that postjudgment interest was to accrue was, in any event, advisory in nature and not binding on the Supreme Court. The petition also alleged that in Craniofacial Pain Mgt. v Allstate Ins. Co. (61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), a case with similar facts, the Appellate Term incorrectly decided the rate at which postjudgment interest accrued.

Allstate opposed BZ’s petition by way of a “cross-petition to dismiss,” which sought sanctions on the ground that the petition was frivolous. Allstate argued that BZ was improperly attempting to relitigate matters that were resolved in Allstate’s favor: “Unsatisfied with the finality of the trial courts and appellate courts, [BZ] now knowingly seeks a second bite at the apple. This, in and of itself, is frivolous.” Allstate argued that the matter must be dismissed on the grounds of res judicata and collateral estoppel, based upon the identity of the parties and issues that were previously determined on the merits. Allstate{**197 AD3d at 164} argued that the Appellate Term’s determination as to the rate that postjudgment interest should accrue was clear and unambiguous. Allstate argued that, upon receiving an undesirable ruling from the Appellate Term, BZ “simply repackaged its original case into the petition now before this court.”

In an order entered March 8, 2019 (62 Misc 3d 1223[A], 2019 NY Slip Op 50241[U] [Sup Ct, Queens County 2019]), the Supreme Court denied that branch of BZ’s petition which sought a turnover of monies from Allstate’s bank account, because BZ failed to name Bank of America, N.A. as a party to the action. However, the court determined that BZ was entitled to a judgment declaring that postjudgment interest on a judgment for first-party no-fault benefits accrues at a rate of 2% per month. The court reasoned that, with respect to interest on awards of first-party benefits, the Insurance Law supersedes the CPLR’s provisions for the accrual of interest, and that “the rate of interest is not reduced simply because the claim has been reduced to a judgment” (2019 NY Slip Op 50241[U], *2). The court denied Allstate’s request for sanctions.

Allstate moved to renew and reargue its cross petition. In an order entered April 22, 2019 (2019 NY Slip Op 34167[U] [Sup Ct, Queens County 2019]), the Supreme Court denied Allstate’s motion in its entirety.

III.

Allstate appeals from the Supreme Court’s orders entered March 8, 2019, and April 22, 2019. On appeal, Allstate argues, inter alia, that BZ improperly used a turnover proceeding to appeal the Appellate Term’s determination as to the rate at which postjudgment interest was to be calculated on its judgment. Allstate argues that BZ’s improper use of a turnover proceeding, if allowed, “completely upends our system of finality by permitting invalid attempts to endlessly appeal.” Allstate argues that collateral estoppel, res judicata, and claim preclusion bar this proceeding, since the two parties to the instant proceeding are the identical parties to the action initiated in Queens County Civil Court, and the Appellate Term decided the identical issue of the rate of postjudgment interest.

In opposition, BZ argues, among other things, that the Appellate Term’s determination as to the rate of postjudgment interest was advisory and non-binding, and without prejudice to BZ seeking a judicial determination in Supreme Court as to the rate at which postjudgment interest was to accrue.{**197 AD3d at 165}

IV.

In my view, BZ’s application to the Supreme Court for declaratory relief as to the rate at which postjudgment interest accrued on its Queens County Civil Court judgment was barred by res judicata and collateral estoppel, and constituted an improper collateral attack on the judgment.

“Issue preclusion, also known as collateral estoppel, bars the relitigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018] [internal quotation marks omitted]). “The doctrine of collateral estoppel[ ] [is] a narrower species of res judicata” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). The doctrine of collateral estoppel “bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” (Mahler v Campagna, 60 AD3d 1009, 1011 [2009]).

“Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [2001]; see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]).

“While issue preclusion,” i.e., collateral estoppel, “applies only to issues actually litigated, claim preclusion (sometimes used interchangeably with ‘res judicata’) more broadly bars the parties or their privies from relitigating issues that were or could have been raised in that action” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72 [emphasis omitted]).

“[R]es judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was”{**197 AD3d at 166} (Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 122 [2008] [internal quotation marks and citation omitted]; see Puryear v Hutchinson, 175 AD3d 521, 522 [2019]).

“The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior proceeding, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior proceeding” (Mahler v Campagna, 60 AD3d at 1011; see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72).

“The doctrine encompasses the law of merger and bar—it precludes the relitigation of all claims falling within the scope of the judgment, regardless of whether or not those claims were in fact litigated” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72 [internal quotation marks omitted]).

Collectively, the doctrines of collateral estoppel and res judicata “serve to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication” (id. at 73 [internal quotation marks omitted]). Attempts to relitigate issues that have been previously decided, or which could have been raised, strain judicial resources and “serve only to undermine public confidence in the judicial process” (id.).

A. Res Judicata

Although the Civil Court judgment was silent as to the rate of postjudgment interest, BZ could have sought redress in the Civil Court or by direct appeal from the judgment to correct that omission, but there is no evidence in the record that BZ sought such relief. Since the issue of postjudgment interest could have been raised in the Civil Court action, BZ was barred from resorting to the Supreme Court for a determination of that issue.

BZ had a number of avenues through which it could have sought redress in the Civil Court action, without resorting to a separate plenary action. For instance, BZ could have moved for correction of the judgment to include a postjudgment rate of interest. Depending on the circumstances of the case, the rate at which interest accrues on a judicial award “may” constitute {**197 AD3d at 167}a substantive right (DHE Homes, Ltd. v Jamnik, 172 AD3d 1164, 1166 [2019]; see Kiker v Nassau County, 85 NY2d 879, 881 [1995] [“the correct rate of interest to be applied to a verdict can constitute a substantive right of a party”]). Where a judgment’s misstatement or omission as to the proper rate of interest is deemed to be a non-substantive matter, the judgment may be corrected by way of motion pursuant to CPLR 5019 (a), which permits a trial or appellate court to correct a mistake, defect, or irregularity in a judgment (see Kiker v Nassau County, 85 NY2d at 881; DHE Homes, Ltd. v Jamnik, 172 AD3d at 1166). Assuming for argument’s sake that the rate of postjudgment interest in this case was a non-substantive matter, there is no evidence that BZ requested that the Civil Court correct the judgment [*8]to include a provision for the rate of postjudgment interest.

Alternatively, where a judgment’s rate of interest is deemed to be a substantive right, an aggrieved party’s options are more circumscribed (see Kiker v Nassau County, 85 NY2d at 881).

“[A] substantive change to a prior order or judgment . . . cannot be made under CPLR 5019 (a), even with notice to the parties and an opportunity to be heard. Trial courts have no revisory or appellate authority to correct by amendments any errors of substance in prior orders or judgments. Where a movant seeks to change an order or judgment in a substantive manner, rather than correcting a mere clerical error, CPLR 5019 (a) is not the proper procedural mechanism to be employed, and relief should be sought through a direct appeal or by motion to vacate pursuant to CPLR 5015 (a). Alternatively, a substantive correction to an order or judgment can be accomplished by a party’s timely motion to reargue under CPLR 2221 (d)” (Sokoloff v Schor, 176 AD3d 120, 132-133 [2019, Dillon, J.P.] [citations and internal quotation marks omitted; emphasis added]; see Herpe v Herpe, 225 NY 323, 327 [1919] [“(substantive) errors are, under our system of procedure, to be corrected either by the vacating of the judgment or by an appeal”]).

The Court of Appeals characterized its holding in Matter of City of New York (Roteeco Corp.) (33 NY2d 970 [1974]) as standing for the proposition that “where rate of interest is litigated and determined by a Judge, any challenge to the interest rate{**197 AD3d at 168} must be made on direct appeal” (Kiker v Nassau County, 85 NY2d at 881 [emphasis added]).

However, BZ never appealed from the Civil Court’s judgment and, assuming without deciding that the omission of the rate of postjudgment interest constituted a substantive matter, by failing to file a direct appeal, the judgment’s terms became final (see Matter of City of New York [Roteeco Corp.], 33 NY2d at 971-972 [“Nor did the earlier partial decree applicable to the fee claimant, appellant Roteeco Corporation, reserve any right to interest at other than the then lawful 4% statutory rate. Both partial decrees, from which claimants took no appeal, became final and the trial court had no jurisdiction to alter its decree in any matter of substance”]).

The remedies afforded by CPLR 5019 (a) or by a direct appeal were available to BZ in the Civil Court action, but were evidently not pursued. The rate of interest was before the Civil Court in the underlying action, insofar as the underlying complaint demanded “interest at 2 percent per month from Aug. 2, 1999, compounded monthly.”

Consequently, the doctrine of res judicata precludes the instant litigation regarding the rate of postjudgment interest, insofar as the proper rate of postjudgment interest “could have been raised in the prior litigation” (Matter of Hunter, 4 NY3d 260, 269 [2005]). Moreover, to the extent that BZ could have obtained relief by moving to reargue the Civil Court’s order or judgment, there is no indication that it availed itself of that procedural mechanism (see Sokoloff v Schor, 176 AD3d at 132-133).

Citing the Supreme Court’s unique authority to render declaratory judgments, my colleagues in the majority conclude that “[t]he Supreme Court’s subject matter jurisdiction was not circumscribed by the fact that prior, related proceedings had been pending in the Civil Court, Queens County” (majority op at 152). To support that proposition, the majority relies upon Abed v Zach Assoc. (124 AD2d 531, 532 [1986]) and Hunter Sports Shooting Grounds, Inc. v Foley (73 AD3d 702, 705 [2010]), which both hold that “[a] request for relief in the form of a declaratory judgment may not be refused simply because of the pendency of a separate action if all legal and factual issues cannot be disposed of in the pending suit or if the controversy will not necessarily be determined therein” (Abed v Zach Assoc., 124 AD2d at 532; see Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d at 705). Those cases are plainly{**197 AD3d at 169} distinguishable in that the Civil Court is entirely capable of rendering a determination as to the rate of postjudgment interest on a judgment that it enters. By contrast, the cases relied upon by the majority involved matters that the Civil Court is without authority to adjudicate. In Abed, the plaintiff sought a declaration, effectively on equitable grounds, that a nonsignatory should be deemed to be a tenant under a residential lease. In Hunter Sports Shooting Grounds, Inc., the plaintiff, who was facing prosecution for violating a noise ordinance, sought a declaration in Supreme Court that the ordinance was unconstitutional. Although the Civil’s Court’s jurisdiction is proscribed in matters involving equitable and declaratory relief (see e.g. Trump Vil. Section 3 v Sinrod, 219 AD2d 590, 592 [1995]; Housing & Dev. Admin. of City of N.Y. v Community Hous. Improvement Program, 90 [*9]Misc 2d 813, 814-815 [App Term, 2d Dept, 2d & 11th Jud Dists 1977], affd 59 AD2d 773 [1977]), BZ could have raised the issue of postjudgment interest in the Civil Court action and, therefore, this action is barred by the doctrine of res judicata.

Moreover, because the doctrine of res judicata bars litigation of issues that could have been raised in a prior proceeding, I disagree with the majority’s framing of the issue in this case as: “[W]hether an advisory opinion or dicta in an order by a court qualifies under res judicata, collateral estoppel, or the law of the case doctrines to preclude a court in a later proceeding from considering the same issue” (majority op at 146). Since BZ had every opportunity to ensure that the judgment specified the rate at which it believed postjudgment interest should have accrued, it is immaterial whether the Appellate Term’s statement regarding the rate of postjudgment interest was dicta or advisory. Rather, the proper framing of the issue, for purposes of a res judicata analysis, is whether the parties could have raised the issue of postjudgment interest in the prior action.

B. Collateral Estoppel

Alternatively, this action is barred by the doctrine of collateral estoppel. Here, in its decision and order dated August 18, 2017, the Appellate Term, undisputably a court of competent jurisdiction, rendered a determination on the merits as to the rate that postjudgment interest was to accrue on BZ’s judgment: “We note that, contrary to plaintiff’s position, postjudgment interest should be calculated pursuant to CPLR 5004 and not at the two percent per month rate provided for in 11 {**197 AD3d at 170}NYCRR 65-3.9″ (2017 NY Slip Op 51091[U], *2). Since BZ was a party to that action, it is bound by that determination under the doctrine of collateral estoppel.

Although I agree with BZ that a purely advisory opinion should not be given collateral estoppel effect (see Thiebeau v Wahl, 91 AD2d 869 [1982]), I disagree with BZ’s contention that the Appellate Term’s post hoc characterization of its holding as to the rate of postjudgment interest as “advisory” necessarily means that such determination was not on the merits. The rate at which interest accrued on the judgment was the subject of disagreement between the parties, and the Appellate Term rendered a determination as to that controversy (see Self-Insurer’s Assn. v State Indus. Commn., 224 NY 13, 16 [1918] [“The function of the courts is to determine controversies between litigants. They do not give advisory opinions” (citations omitted)]). In the same order where the Appellate Term referred to its holding as “advisory,” it also unambiguously clarified that its intention was “to note that interest be awarded at the rate of nine percent per year” (2017 NY Slip Op 96378[U], *1 [emphasis added]).

Since the Appellate Term actually decided the rate of postjudgment interest and this Court denied BZ’s application for leave to appeal from the Appellate Term’s order, the matter should have been deemed finally concluded, and barred by the doctrine of collateral estoppel (see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72).

C. This Proceeding/Action Constitutes an Improper Collateral Attack on the Judgment

Allstate argues that the Supreme Court’s determination “completely upends our system of finality by permitting invalid attempts to endlessly appeal.” Although Allstate does not use the precise phrase “collateral attack” in its papers, the essence of Allstate’s argument is that the proceeding/action constitutes an improper collateral attack on the judgment. While the majority dismisses this issue as unpreserved and not before us, the concepts of res judicata (which was raised) and collateral attack are so closely related that they are essentially different terms for the same policy-driven prohibition on attempting to relitigate issues between parties who have already had their day in court: “[U]nder the doctrine of res judicata a matter once judicially decided is finally decided; therefore, a litigant will not be heard to attack collaterally a matter which was or could have been determined in the prior litigation” (Friedman {**197 AD3d at 171} v State of New York, 24 NY2d 528, 535 [1969] [emphasis added]).

“Generally, a judgment is not open to collateral attack where the court had jurisdiction of the subject matter and of the parties, as well as jurisdiction to render the judgment, regardless of whether the judgment was right or wrong” (73 NY Jur 2d, Judgments § 275 [footnote omitted]). “A collateral attack upon a prior judgment is an attempt to avoid, defeat, or evade a judicial decree, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking the prior judgment” (id.). Here, the Civil Court had jurisdiction over the parties as well as jurisdiction to enter a judgment as to the applicable postjudgment rate of interest and, therefore, BZ should not be permitted to collaterally attack the Civil Court judgment through the instant action.

Morever, this case does not fit within any of the narrow exceptions to the general rule prohibiting collateral attacks on judgments. The judgment is not, for instance, jurisdictionally [*10]defective (see Royal Zenith Corp. v Continental Ins. Co., 63 NY2d 975, 977 [1984] [“a judgment rendered without jurisdiction is subject to collateral attack”]), nor was it rendered as the result of a fraudulent scheme (see Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 752 [2009] [“The plaintiff here . . . has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack”]; see also New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 88 [2000]). Additionally, although BZ was entitled to bring a direct appeal to correct the judgment’s omission as to the rate of postjudgment interest, it failed to do so (see Gager v White, 53 NY2d 475, 484 n 1 [1981] [“It is settled that judgments where the normal appellate process has been exhausted may not be collaterally attacked”]).

BZ’s avenue for relief, if any, should have been within the context of the Queens County Civil Court action, rather than—17 years later—collaterally attacking the judgment’s failure to specify the rate of postjudgment interest by commencing a new plenary action in Supreme Court (see Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C., 102 AD3d 544, 545 [2013]; Matter of Limitone Enters., Inc. v Walker, 102 AD3d 697, 697-698 [2013]; Weinstock v Citibank, 289 AD2d 326, 326 [2001]). Stated differently, a court of original jurisdiction should not entertain an action for a declaration that another court’s determination as to a particular controversy was incorrect.{**197 AD3d at 172}

V.

Accordingly, in my view, BZ was not entitled to a declaration in this proceeding/action that postjudgment interest on its Civil Court judgment accrues at a rate of 2%. I agree with my colleagues in the majority that Allstate was not entitled to sanctions. I respectfully vote to modify the order entered March 8, 2019, insofar as appealed from, deny that branch of the petition which was for a judgment declaring that the judgment in favor of BZ accrued interest at the rate of 2% per month compounded, and grant that branch of Allstate’s cross petition which was to dismiss the proceeding/action. In addition, I vote to dismiss the appeal from so much of the order entered April 22, 2019, as denied that branch of Allstate’s motion which was for leave to reargue, as no appeal lies from an order denying reargument, to dismiss the appeal from so much of the order entered April 22, 2019, as denied that branch of Allstate’s motion which was for leave to renew that branch of its cross petition which was to dismiss the proceeding/action as academic in light of our determination on the appeal from the order entered March 8, 2019, and to affirm the order entered April 22, 2019, insofar as reviewed.

Barros and Christopher, JJ., concur with Dillon, J.P.; Connolly, J., concurs in part and dissents in part in a separate memorandum.

Ordered that the order entered March 8, 2019, is affirmed insofar as appealed from; and it is further,

Ordered that the appeal from so much of the order entered April 22, 2019, as denied that branch of the motion of Allstate Insurance Company which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order entered April 22, 2019, is affirmed insofar as reviewed; and it is further,

Ordered that the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring postjudgment interest on the judgment entered on November 15, 2001, in favor of B.Z. Chiropractic, P.C., and against Allstate Insurance Company in the amount of $8,847.49 accrued at the rate of 2% per month compounded; and it is further,

Ordered that one bill of costs is awarded to B.Z. Chiropractic, P.C.

MSB Physical Therapy, P.C. a/a/o BRIGHT, SAYQUAN U, Plaintiff, against Nationwide Ins., Defendant.

CV-739339-17/KI

Hollander Legal Group, P.C., Melville (Jonathan Drapan of counsel), for Nationwide Ins., defendant.

The Rybak Firm, LLC, New York City (Oleg Rybak of counsel), for MSB Physical Therapy P.C., plaintiff.

Richard Tsai, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion, Affirmation and Affidavits Annexed

Exhibits A-Z 1-18

Notice of Cross Motion, Affirmation in Support of Cross Motion and In Opposition to Motion, Affidavits Annexed Exhibits 1-8 19-22

Affirmation in Opposition to Cross Motion Exhibits A-B 23-24

Replying Affidavits NONE

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff failed to appear at duly scheduled Examinations Under Oath (EUOs) on four separate occasions (Motion Seq. No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant, or in the alternative, moves for an order compelling defendant to provide discovery (Motion Seq. No. 002). Defendant opposes the cross motion.

The issue presented is whether plaintiff raised triable issues of fact as to whether plaintiff had failed to appear at the EUOs, where defendant refused plaintiff’s requests to reschedule the EUOs for lengthy adjournments of two to three months. Additionally, another issue presented is [*2]whether the EUOs scheduled before defendant received the bills at issue tolled the 30-day period for defendant to pay or otherwise deny the bills received, where the record contains no evidence that defendant had otherwise sent any requests for additional verification during the relevant 30-day periods for some of those bills.

A prior decision and order dated July 12, 2021 decided both the motion and cross motion. However, that decision and order is hereby recalled and vacated, because this court inadvertently overlooked defendant’s opposition papers to plaintiff’s cross motion, which are now considered in this amended decision and order.

BACKGROUND

On September 7, 2016, plaintiff’s assignor, Sayquan U. Bright, was allegedly injured in a motor vehicle accident (see defendant’s exhibit A in support of motion, complaint ¶ 2). This action concerns eight bills for dates of service during the period of January 13, 2017 through February 15, 2017:

Bill	Dates of Service	Billed Amount	Defendant’s Exhibit
1	1/13/2017	$184.43	E
2	1/18/2017	$184.43	F
3	1/19/2017-1/26/2017	$184.92	G
4	1/19/2017-1/26/2017	$219.87	G
5	1/19/2017-1/26/2017	$148.50	G
6	2/3/2017-2/15/2017	$247.50	H
7	2/3/2017-2/15/2017	$366.45	H
8	2/3/2017-2/15/2017	$308.20	H

(see defendant’s exhibits E-H in support of motion).

EUO of plaintiff on November 21, 2016

Prior to the alleged receipt of the bills, by a letter dated November 8, 2016, purportedly sent by certified mailed and first class mail to plaintiff, defendant’s counsel scheduled an EUO of plaintiff on November 21, 2016 at 2:00 p.m., at its office in Melville, New York, regarding 14 claimants which plaintiff treated, including Bright (see defendant’s exhibit I in support of motion, scheduling letter).

By a letter dated November 17, 2016 (four days before the scheduled EUO), purportedly sent by fax, the Rybak Firm PLLC responded that it represented plaintiff, requested that the EUO be rescheduled to a location in Brooklyn, New York, and advised that plaintiff “will be unavailable for the months of November and December due to the upcoming seasonal holidays” (defendant’s exhibit J in support of motion). Plaintiff’s counsel also noted that the EUO date conflicted with another scheduled EUO for a different medical provider which plaintiff’s counsel [*3]represented (id.). Plaintiff’s counsel therefore requested that plaintiff’s EUO be rescheduled to January, and requested reimbursement of $1,500 per claimant prior to the commencement of the EUO (id.). In closing, the letter stated, “Your failure to respond to this letter at least three (3) business days prior to the next scheduled EUO will be deemed a waiver of Nationwide’s rights to conduct EUO for the above named assignee(s)” (id.).

According to defendant’s counsel, Allan S. Hollander, plaintiff failed to appear at the EUO, and counsel placed a statement on the record accordingly at 2:53 p.m. (see defendant’s exhibit K in support of motion, aff of Allan S. Hollander ¶ 5 and tr. at 5). Hollander stated that plaintiff’s counsel “asked for a date in January . . . and I responded to him via a letter, that we would select a date in January to conduct his client’s examination under oath” (tr. at 6).

EUO of plaintiff on January 23, 2017

By a letter dated November 22, 2016, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on January 23, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding the 14 claimants, including Bright (see defendant’s exhibit L in support of motion, scheduling letter). The letter further stated,

“Provided your client appears at the examination under oath and answers questions with respect to the corporate structure of MSB Physical Therapy and the treatment of the patients named herein, Nationwide will honor your client’s reimbursement request and present your client a check for $1,500.00. Nationwide will show your client the check prior to the examination under oath and will provide your client with the check subsequent to its completion”

(id.). By a letter dated November 28, 2016, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel again notified plaintiff of the EUO on January 23, 2017 at 11:00 a.m. in Brooklyn, New York (defendant’s exhibit M in support of motion).

By a letter dated January 10, 2017, purportedly sent by first class mail, plaintiff’s counsel responded,

“MSB Physical has extended their schedule till the end of February 2017, and will be unavailable to appear for the requested EUO currently scheduled for January 23, 2017. Please take further notice that it is very common amongst medical providers to have their schedules fully booked for about the same period of 2-4 months depending on the circumstances, as well to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO”

(defendant’s exhibit N in support of motion). Plaintiff’s counsel again indicated that the EUO was scheduled on the same date as the EUO of another provider which plaintiff’s counsel represented (id.). Plaintiff’s counsel requested an EUO be scheduled in March (id.). Lastly, plaintiff’s counsel indicated that it had suggested an amount of $1,500 per claimant for reimbursement (id.).

By a letter dated January 17, 2017 addressed to plaintiff’s counsel, defendant’s counsel responded, in relevant part,

“Please be advised that a representative from this office will be present to place a default statement on the record concerning your client’s non-appearance at the EUO on January 23, 2017. Your correspondence further states that your client now needs an additional [*4]two to four months to appear and be ready for the examination under oath.

As such, this office will document the default of your client’s appearance at the EUO on January 23, 2017. Thereafter, this office will send notification noticing your client for a third and final EUO to take place on March 21, 2017. You should already be aware that your client failed to appear and/or asked to adjourn an EUO scheduled for November 21, 2016. Thereafter, your client was noticed two months later for the EUO to take place on January 23, 2017. As such, in good faith, Nationwide will afford your client one final opportunity to appear for an EUO for March 21, 2017.

Additionally, your correspondence asks for reimbursement in the amount of $1,500 for appearing at an examination under oath. . . . If your client wants more than $1,500.00 for its appearance at the EUO, your client will have to substantiate same by submitting proof of actual loss of earnings in the amount greater than $1,500.00″‘

(defendant’s exhibit O in support of motion).

According to defendant’s counsel, Christopher Volpe, plaintiff failed to appear at the EUO on January 23, 2017, and counsel placed a statement on the record accordingly at 1:35 p.m. (see defendant’s exhibit P in support of motion, aff of Christopher Volpe ¶ 4 and tr. at 5-6).

EUO of plaintiff on March 21, 2017

By a letter dated January 25, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on March 21, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant’s exhibit Q in support of motion, scheduling letter).

By a letter dated March 16, 2017, purportedly sent by fax, plaintiff’s counsel responded,

“Please accept this letter as a good faith effort on the part of MSB Physical to comply with all the policy requirements of Nationwide Affinity Insurance Company of America and Titan Indemnity Company (“Nationwide”). As mentioned before, our client is prepared to meet its obligations to cooperate in the investigation of all claims, and is ready to proceed with a mutually convenient and properly scheduled EUO with the basis for this request provided. . . .

However, once again Nationwide has failed to provide our client with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim, while our client has an absolute right to request for the basis of this EUO request, and Nationwide has a corresponding basis to provide such an explanation. . . .

As for the scheduled EUO, please be advised that MSB Physical has extended their schedule for the next two (2) months, and will be unavailable to appear for the requested EUO currently scheduled for March 21, 2017. There is nothing wrong or illegal about that, but common medical practice for medical providers to have their schedules fully booked for about the same period 2-4 months depending on the circumstances, as well as to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO.

Accordingly, as the law provides that an EUO be scheduled for a time and place that is convenient to the person who is being examined, we preserve our client’s rights. Please let our office know which other dates in May 2017 Nationwide is available to conduct the EUO of MSB Physical so that we may arrange for a mutually convenient date, time and location. Pursuant to 11 NYCRR 65-3.2 and 11 NYCRR 65-3.5(e), the refusal to adjourn an EUO is a direct violation of the No-Fault regulations”

(defendant’s exhibit R in support of motion).

According to defendant’s counsel, Caitriona McCarthy, plaintiff failed to appear at the EUO on March 21, 2017, and counsel placed a statement on the record accordingly at 12:01 p.m. (see defendant’s exhibit S in support of motion, aff of Caitriona McCarthy ¶ 4 and tr. at 6-7).

EUO of plaintiff on May 19, 2017

By a letter dated March 23, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on May 19, 2017 (see defendant’s exhibit T). The letter further stated, in pertinent part,

“Your client has now missed its March 21, 2017 EUO date. You had asked this office previously to notice the examination under oath two months in advance due to the fact that your client’s calendar was booked in January. As such, Nationwide, in good faith, noticed the EUO two months from January to March 21, 2017 to afford your client every opportunity to clear its calendar and appear for its noticed examination under oath.

Nevertheless, once again, on the eve of the examination under oath, four days before said examination under oath, you are contacting this office and stating your client cannot appear due to its busy schedule.

You are stating in this correspondence that Nationwide has not provided your client with its good reasons and objective basis for noticing your client for an examination under oath. Please be advised that your client has been noticed for an examination under oath for the following reasons, which included but are not limited to:

1. The listed owner of MSB Physical Therapy, Maria Sheila Buslon, P.T., lives and works in Florida. This raises questions as to the true ownership and control of the New York P.C.;

2. The treating physical therapist, Ankit Baldevbhai Patel, is performing services as an employee of MSB Physical Therapy, P.C. and PFJ Medical P.C. on the same dates;

3. There is no Workers’ Compensation policy found for your client’s entity;

4. There is no phone number found on any of the bills or letterhead for your client’s company; and

5. Clinic inspections into your client’s facility have been refused.

The aforementioned are some of the reasons why Nationwide has noticed your client for an examination under oath. Nationwide is trying to determine whether or not your client is properly structured under the Business Corporation Laws of the State of New York and eligible to receive New York State No-Fault Benefits.

* * *

Your client has failed to appear for three examinations under oath with respect to the above claims. Nationwide will notice the examination under oath of your client for a day in May, 2017. The May examination under oath will be the final opportunity for your client to appear for an examination under oath with regard to the claims at issue. The date of that examination under oath will be May 19, 2017 . . . “

(defendant’s exhibit T in support of motion; see also defendant’s exhibit Y in support of motion, aff of Linda Arnold ¶ 4).

By a letter dated March 29, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on May 19, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant’s exhibit U in support of motion, scheduling letter).

According to defendant’s counsel, Michael Weaver, plaintiff failed to appear at the EUO on May 19, 2017, and counsel placed a statement on the record accordingly at 12:10 p.m. (see defendant’s exhibit V in support of motion, aff of Michael Weaver ¶ 4 and tr. at 6-7).

Further Correspondence between the parties’ counsel

By a letter dated June 23, 2017, purportedly sent by first class mail, plaintiff’s counsel wrote,

“This correspondence is in reply to your letter dated June 1, 2017 pertaining our client’s outstanding EUO, which is still required to be submitted by our client to Nationwide Affinity Insurance Company of America and Titan Indemnity Company (“Nationwide”).

Please accept this letter as another good faith effort on the part of MSB Physical to comply with all policy requirements of Nationwide. . . .

However, upon numerous requests, up to date our client has not been provided with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. Instead, you repeatedly list the same irrelevant and misleading reasons (based upon mere speculation and suspicion as opposed to a good faith substantive basis), which we have already objected to in our previous correspondence regarding this matter dated May 18, 2017.

At this point, while Nationwide’s reasons for the EUO being objected to before are irrelevant under the circumstances, we have no other choice, but to reiterate our previous request to provide our client will all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. As you know, our client has an absolute right to request that Nationwide explains the basis for this EUO request, and Nationwide has a corresponding obligation to provide such explanation.

Once provided with same, once an agreement is reach as for a mutually convenient and properly scheduled EUO, and once the issue of our client’s reimbursement is negotiated, our client is ready to proceed”

(defendant’s exhibit W in support of motion).^[FN1]

By a letter dated June 29, 2017, defendant’s counsel responded to plaintiff’s counsel dated June 23, 2017, stating, in relevant part, “Your client has now failed to attend its examination under oath on four separate occasions with respect to the claims at issue” (defendant’s exhibit X in support of motion). Defendant’s counsel reiterated the five reasons for plaintiff’s EUO from its prior letter dated March 23, 2017 (id.).

Denial of Claim Forms

On June 8, 2017, defendant allegedly issued denials of all eight bills at issue in this action, stating, in relevant part:

“MSBP Physical Therapy PC has failed to respond to multiple requests for additional verification and has refused to provide pertinent information that will assist Nationwide in determining the amounts due and payable, pursuant to section 65-1.1(d). Additionally, this failure to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017, duly requested, is a violation of the policy[‘]s contractual duties and a violation of proof of claim conditions that precede coverage . . . , and as a result, all no fault billing for services rendered under this policy are being denied”

(see defendant’s exhibits E-H in support of motion, NF-10 forms Box 33).

The instant action

On November 2, 2017, plaintiff commenced this action asserting eight causes of action to recover assigned first-party no-fault benefits for the eight bills, with interest, plus a ninth cause of action attorneys’ fees (see defendant’s exhibit A in support of motion, summons and complaint). ^[FN2] On December 7, 2017, defendant allegedly answered the complaint (see defendant’s exhibit B in support of motion, answer and affidavit of service).

DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

I. Defendant’s Motion for Summary Judgment (Motion Seq. No. 001)

Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff failed to appear for duly scheduled EUOs on four separate occasions, i.e., on November 26, 2016, January 23, 2017, March 21, 2017, and May 29, 2017 (affirmation of [*5]defendant’s counsel ¶¶ 18, 23-70).

“[A]n appearance at an EUO is a condition precedent to the insurer’s liability on the policy” (GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137 [A], 2011 NY Slip Op 50194 [U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims”

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760 [U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]).

1. Mailing of the EUO scheduling letters

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2d Dept 2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). A party can establish proof of mailing “through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature” (CIT Bank N.A. v Schiffman, 36 NY3d 550, 556 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], citing Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

“Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, to establish proof of mailing of the EUO scheduling notices, defendant submitted an affidavit from Allan S. Hollander, a former partner with the firm of Bruno, Gerbino & Soriano LLP (see defendant’s exhibit Z in support of motion, aff of Allan S. Hollander). According to Hollander, tracking confirmations from the United States Postal Service established delivery by certified mail of the EUO scheduling notices dated November 28, 2016, January 25, 2017, and March 29, 2017 (Hollander aff ¶¶ 9, 13,17, 24). However, as plaintiff’s counsel points out, the record does not contain any copies of such tracking confirmations. Thus, defendant failed to prove mailing by proof of actual mailing via certified mail.

Neither did Hollander’s affidavit establish proof of mailing by a standard office practice or procedure. Hollander stated,

“At the time of the subject correspondence, including the EUO scheduling letters and responses to Plaintiff’s correspondence, it was the ordinary course of business at Bruno Gerbino & Soriano to mail such correspondences, via the United States Postal Service by Certified Mail, Return Receipt Requested, and 1st class mail on the same date that they [*6]are created and dated and to the address and facsimile numbers listed thereon.

Specifically, after it was created, the EUO request letters were placed in a United States Postal Service bin, located on the third (3rd) floor of the law office of Bruno, Gerbino & Soriano, and the envelope with the proper Certified Mail, Return Receipt Requested material annexed thereto.

Thereafter, a different individual would affix the proper postage to the envelope to the envelope containing the EUO request letter. This parcel of mail, as well as other mail contained in the above-referenced bin, were taken to the mail room located in the lower lobby of Bruno Gerbino & Soraino’s [sic] building. . . . A member of the United States Postal Service would then take the mail to the U.S. Post Office located in Melville, New York. The empty mail bin would be returned to Bruno Gerbino & Soriano the following business day”

(Hollander aff ¶¶ 24-26).

Although Hollander maintained that the EUO scheduling letters were mailed on the same date that they were created and dated, nothing in office procedures described supported that assertion. Hollander described the procedures, but did not state when they occurred, except to say that the empty mail bin was returned the following business day. Hollander also maintained that the envelopes containing the EUO scheduling letters were addressed to the addresses listed on the scheduling letters, but he did not state that the letters were mailed in windowed envelopes. In the absence of any recitation of as to how the names and addresses on the EUO scheduling letters were checked for accuracy on the unwindowed envelopes, this court agrees with plaintiff’s counsel that, on this record, defendant did not establish that the office practice and procedure followed was designed to ensure proper mailing (Orthotech Express Corp. v MVAIC, 37 Misc 3d 128[A], 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] [“in any event, defendant acknowledged receipt of the claim”]).

Notwithstanding the above, defendant established proof of mailing of the EUO scheduling letters based on the letters in response from plaintiff’s counsel, which acknowledged receipt of the EUO scheduling letters (see Socrates Med. Health, P.C. v Motor Vehicle Acc. Indemnification Corp., 28 Misc 3d 141[A], 2010 NY Slip Op 51606[U], *1 [App Term, 1st Dept 2010] [“in any event, defendant acknowledged receipt of the claim”]). Thus, plaintiff fails to raise a triable issue of fact as to whether the EUO scheduling letters were mailed.

2. Plaintiff’s failure to appear

Although plaintiff did not appear at the EUO scheduled on November 21, 2016, this does not constitute a failure to appear because Hollander’s statement on the record on November 21, 2016 appears to suggest that the parties mutually agreed to reschedule the EUO to a date in January 2017 (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701 [U][App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015).

Defendant established that plaintiff failed to appear for EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, by submitting certified transcripts from the EUOs scheduled and held on those days. Although plaintiff argues that defendant must also submit an affidavit from someone with personal knowledge that plaintiff failed to appear at an EUO and that the [*7]EUO transcripts must be signed or notarized by defendant’s SIU investigator (see affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion [Rybak affirmation] ¶¶ 146, 163, 175, 198, 205, 208, 227), the transcripts memorializing the missed appearances, which were certified as true and accurate by stenographers, are sufficient (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see also Atlantic Radiology Imaging, P.C. v Metro. Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). ^[FN3] In any event, defendant submitted affidavits from the attorneys who were physically present at the court reporting location in Brooklyn, New York on the dates and scheduled times of the EUOs (NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In opposition, plaintiff argues that defendant failed to establish that it had objective reasons for requesting plaintiff’s EUO (see Rybak affirmation ¶¶ 154, 160-162). However, the Appellate Term, Second Department has repeatedly ruled, “contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment” (21st Century Pharmacy, Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; see also Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Contrary to plaintiff’s argument (see Rybak affirmation ¶¶ 152, 155), “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

Plaintiff’s reliance upon Meridian Psychological Services, P.C. v Allstate Insurance Company (51 Misc 3d 128[A], 2016 NY Slip Op 50375[U] [App Term, 2d Dept, 2d, 11th & [*8]13th Jud Dists 2016]) is misplaced. There, the attorney testified at a nonjury trial that, “for the second EUO, she checked at 11:30 a.m. to see whether the assignor had appeared and continued to check for another 15 minutes, but plaintiff’s assignor never appeared. However, the letter scheduling the second EUO scheduled the EUO for 11:00, not 11:30” (id.). Here, unlike Meridian Psychological Services, P.C., the certified EUO transcripts reflect that defendant’s counsel stated on the record that EUO were to begin at 11:00 a.m. (see defendant’s exhibits P, S, and V in support of motion), which was the time reflected on the EUO scheduling letters. Thus, no reasonable inference could be drawn that plaintiff had appeared at the EUOs and left before defendant’s counsel had checked for plaintiff’s appearance. Additionally, for the EUO on January 23, 2017, counsel expressly stated that he had been present since 11:00 a.m. (see defendant’s exhibit P, tr at 7). Neither does plaintiff submit an affidavit from anyone claiming that plaintiff had appeared for any of the EUOs.

Contrary to plaintiff’s argument, the EUO scheduling letters complied with 11 NYCRR 65-3.5 (e). They identically stated, in relevant part, “Nationwide will reimburse you for the reasonable cost of transportation and any loss of earnings of earnings in order to comply with this request, upon submission of receipts and proper documentation” (see defendant’s exhibits M, Q, and U in support of motion).

To the extent that plaintiff argues that the EUO scheduling letters were not in “proper form” because the defendant did not designate a location and time was not “mutually convenient” for plaintiff (see Rybak affirmation ¶ 159), this argument is unavailing. The no-fault regulations do not require an insurer to schedule EUOs according to plaintiff’s convenience. Rather, they provide, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant” (11 NYCRR 65-3.5 [e]). On the record presented, plaintiff fails to raise a triable issue of fact as to whether the EUO were scheduled at reasonably convenient times.

The regulations do not place a limit on the number of times an applicant for no-fault benefits can request to reschedule an EUO. Courts have ruled that an EUO that is mutually rescheduled prior to the appointed time would not be deemed to constitute a failure to appear (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Psychological Servs., P.C. v Mercury Cas. Co., 49 Misc 3d 143[A], 2015 NY Slip Op 51644[U] [App Term, 1st Dept 2015]).

However, one cannot assume that an EUO is mutually rescheduled merely because a request to reschedule an EUO was made (Alas Lifespan Wellness, PT, P.C. v Citywide Auto Leasing, Inc., 64 Misc 3d 131[A], 2019 NY Slip Op 51040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled]).

If plaintiff requested to reschedule an EUO and received no response, then the insurer is not entitled to summary judgment dismissing the complaint as a matter of law (Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages]).

If an insurer refuses a timely and proper request to reschedule, then an issue of fact arises as to whether the EUOs were scheduled to be held at a time or place which was “reasonably convenient” to plaintiff (Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). One lower court has ruled that an insurer may not unreasonably refuse to adjourn the exams “where a good-faith request is made to re-schedule and the adjournment sought is not excessive” (Diagnostic Radiographic Imaging, P.C. v GEICO, 42 Misc 3d 1205[A], 2013 NY Slip Op 52247[U] [Civ Ct, Kings County 2013]; see also A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 22, 2005 NY Slip Op 25297 [App Term, 2d Dept 2005]).

Here, defendant’s submissions indicate that the requests of plaintiff’s counsel to reschedule were made days before the EUOs were to occur, even though defendant’s counsel had mailed the scheduling letters well in advance before the scheduled EUOs. Assuming, for the sake of argument, that the requests of plaintiff’s counsel were timely, plaintiff did not raise a triable issue of fact as to whether these requests to reschedule were proper, or that they were made in good faith. Plaintiff requested lengthy adjournments of the EUO for two to three months, ostensibly for the reason that plaintiff is a doctor. If that reason, without more, constituted a good faith basis for an adjournment, then plaintiff could postpone an EUO indefinitely.

As discussed above, when an insurer schedules an EUO, the insurer must inform the applicant seeking no-fault benefits that “the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR 65-3.5 [e]), which occurred here. Thus, any concern for the loss of earnings would not be a valid reason to reschedule an EUO. Additionally, when requesting to reschedule, plaintiff offered no specific dates which would be convenient for plaintiff. On this motion, plaintiff did not come forward within any additional information to support the contention that such lengthy adjournments would be reasonable under the circumstances. Thus, plaintiff fails to raise a triable issue of fact as to whether its requests for adjournments for two to three months were either proper, or made in good faith.

To the extent plaintiff contends that defendant “failed to provide[ ] that . . . Assignor [sic] is reasonably paid for his or her time and traveling expenses” and “failed to agree to reimburse the provider” (Rybak affirmation ¶¶159, 166), this argument is similarly unavailing. Plaintiff demanded a flat, up-front reimbursement in the amount of “$1,500 per claimant” at the commencement of the EUO (see defendant’s exhibit J in support of motion, letter from plaintiff’s counsel dated November 17, 2016). However, plaintiff’s counsel cites no authority for the proposition that the insurer must reimburse the lost earnings before the EUO takes place, and that the lack of reimbursement prior to the EUO would excuse the person to be examined from having to appear. As a practical matter, the duration of an EUO may be an important factor in calculating the reimbursement of lost earnings. Additionally, defendant indicated that it wished to inquire about defendant’s ownership and operations, which would be information common to all the claimants (defendant’s exhibit T in support of motion). In this case, the request of plaintiff’s counsel for a flat, up-front fee of $1,500 per claimant was improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation [*9]expenses as set forth in the regulations”]).

Thus, plaintiff fails to raise a triable issue of fact as to whether plaintiff failed to appear for duly scheduled EUOs.

3. Timely Denial of the Claims

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).

a. Receipt of Bills

According to Kathleen McAndrews, a Claims Specialist employed by defendant Nationwide Mutual Insurance Company (Nationwide Mutual) at the claims office in Liverpool, New York, the policy upon which these claims have been presented is a policy underwritten by Nationwide Affinity Insurance Company of America, which is a company of Nationwide Mutual (defendant’s exhibit D in support of motion, McAndrews aff ¶¶ 1-3). McAndrews stated that all New York No-Fault related mail “regardless of where it is addressed is forwarded to P.O. Box 26005, Daphne, AL 36526-1126 for processing” (id. ¶ 10). It is undisputed that the claim forms were sent to “Nationwide Insurance Company” at “P.O. Box 26005, Daphne, AL 36526” (see defendant’s exhibits E-H in support of motion, NF-3 forms).

According to Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), AIS is defendant’s authorized agent “for receiving bills and/or correspondence at Post Office Box 26005, Daphne, AL 36526” (see defendant’s exhibits E-H in support of motion, Taylor long affs ¶ 2).^[FN4] He stated,

“Upon receipt of a bill . . . via regular mail at Post Office Box 26005, Daphne, AL 36526, or facsimile, the following process is utilized: Once the mail is delivered, the inbound mailroom team sorts all of the mail. Each envelope is opened by an electronic machine and then distributed to the batching team. The batchers take the contents of each envelope out, assign an identifying ID number to the contents of each envelope, and then the contents are given to the scanners to create an electronic image. The scanner machine affixes the receive date that the document was received onto each page of the document, as it is imaged. The hard copies of the records are filed and maintained in the file room for Thirty (30) days. The documents are imaged to Nationwide Affinity Insurance Company of America on the same day that the scanner machines affixes the receive date. The scanner machine affixes the received date to the document the same [*10]date the document is received by AIS”

(Taylor long affs ¶ 4). Defendant also submitted the business records of AIS (see defendant’s exhibits E-H in support of motion), which Taylor established as admissible business records under CPLR 4518 (see Taylor long affs ¶¶ 12-13). Based on the date stamps that appeared at the top of bills submitted to defendant, and based on the business records, defendant established that it received the bills on the following dates shown in Table 1 below:

Bill	Dates of Service	Billed Amount	Date Received	Defendant’s Exhibit
1	1/13/2017	$184.43	1/20/17	E
2	1/18/2017	$184.43	2/6/17	F
3	1/19/2017-1/26/2017	$184.92	2/6/17	G
4	1/19/2017-1/26/2017	$219.87	2/6/17	G
5	1/19/2017-1/26/2017	$148.50	2/6/17	G
6	2/3/2017-2/15/2017	$247.50	2/25/17	H
7	2/3/2017-2/15/2017	$366.45	2/25/17	H
8	2/3/2017-2/15/2017	$308.20	2/25/17	H

Table 1. Date of Receipt of Bills

b. Proof of Mailing of Denials

To establish proof of timely mailing of the denials, defendant again relied upon the affidavits of McAndrews and Taylor, and the business records of AIS.

According to McAndrews, NF-10 forms are prepared by Claims Specialists, who then electronically notify AIS that the denials are ready for printing (McAndrews aff ¶¶ 17-18). The NF-10 forms use the address(es) contained on the billing documents provided by the medical provider and/or the medical provider’s attorney (id.¶ 15).

According to Taylor, it is AIS’s practice to mail all Explanations of Review (EORs) and NF-10 forms to the provider in duplicate on the same day that they are generated (see defendant’s exhibits E-H, Taylor long affs ¶ 6). The date that the EOR and NF-10 form are generated is noted in the lower left hand corner of the document (id.). Once an EOR and an NF-[*11]10 form are printed for a particular claim, the documents are then placed into a mail machine by AIS mailroom personnel (Taylor long affs ¶ 13). A notation in the history of the record verifies that the documents have been printed, which is entered automatically in the bill history when the print job is run and cannot be altered (id.). The mail machine reads a unique bar code number generated by the system to separate the documents, places the printed documents into a clear windowed envelope, and then prints first class postage on the envelope (id.). The letters to be mailed are maintained in a secure area in the AIS mailroom until they are picked up by the United States Postal Service, which picks up the mail each business day (id.). Any document processed by the AIS mailroom after 2:00 PM is mailed the next business day (Taylor long affs ¶ 14).

McAndrews’s and Taylor’s affidavits and AIS business records establish proof of mailing of the denials in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), either on the dates listed in Table 2 below, or on the next business day:

Bill	Dates of Service	Billed Amount	Date of Denial	Defendant’s Exhibit
1	1/13/2017	$184.43	6/8/17	E
2	1/18/2017	$184.43	6/8/17	F
3	1/19/2017-1/26/2017	$184.92	6/8/17	G
4	1/19/2017-1/26/2017	$219.87	6/8/17	G
5	1/19/2017-1/26/2017	$148.50	6/8/17	G
6	2/3/2017-2/15/2017	$247.50	6/8/17	H
7	2/3/2017-2/15/2017	$366.45	6/8/17	H
8	2/3/2017-2/15/2017	$308.20	6/8/17	H

Table 2. Dates when denials were issued

“[T]o rebut the presumption [of mailing], there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put [*12]another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient”

(CIT Bank N.A, 36 NY3d at 557).

Contrary to plaintiff’s argument, defendant did submit an affidavit from someone with personal knowledge of the denials, because McAndrews stated that she was the Claims Specialist who issued the denials, and McAndrews also had personal knowledge of the claims procedures and mailing procedures (McAndrews aff ¶¶ 5-7, 22-23).^[FN5] Although plaintiff’s counsel contends that the affidavit of Kelly Weaver, Claims Representative, was insufficient (see Rybak affirmation ¶¶ 317-334), defendant did not submit an affidavit from Kelly Weaver. The affidavit of Linda Arnold was not offered to establish proof of mailing, but rather discussed defendant’s reasons for requesting the EUO of plaintiff (see defendant’s exhibit Y in support of motion).

As plaintiff points out, McAndrews indicated that she had reviewed electronic claim file (McAndrews aff ¶ 23), but defendant did not submit copies or printouts of the electronic claim file. “Evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible” (Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations and internal quotation marks omitted]). Thus, any information that McAndrews could only have obtained from the electronic log would not be admissible. However, in this case, McAndrews had personally issued the denials, and had submitted copies of the denials themselves, which McAndrews established as defendant’s business records (see McAndrews aff ¶ 38). Plaintiff does not point to any information in McAndrews’s affidavit relevant to proof of mailing that could only have been derived from a review of the electronic claims file.

Plaintiff’s reliance upon Acupuncture Prima Care, P.C. v State Farm Mutual Auto Ins. Co. (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007]) and Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (19 Misc 3d 1139[A] [Dist Ct, Nassau County 2008]) is misplaced. The same court which decided Carle Place Chiropractic and Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond:

“It was the opinion of this court that, when stripped of all of its excess verbiage, the insurance companies’ mailing procedures were simply to place a denial form in an envelope and to have someone subsequently mail same. Carle Place Chiropractic v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 1139(A), Slip Copy, 2008 WL 2228633 (Dist.Ct. Nassau Co. 2008); Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins. Co., 17 Misc 3d 1135 (A), 851 NYS2d 67 (Dist.Ct. Nassau Co. 2007); New York Hospital Medical Center of Queens v. Liberty Mutual Insurance Company, 16 [*13]Misc 3d 1104 (A), 841 NYS2d 827 (Dist.Ct. Nassau Co. 2007) Recently, however, the Appellate Division, Second Department has found just such a practice and procedure to adequately describe “a standard office practice[] or procedure[] designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, 50 AD3d 1123, 857 NYS2d 211 (2nd Dept. 2008). This court is now constrained to follow this appellate authority”

(Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008]).

Contrary to plaintiff’s assertion, boxes #23 through #33 on each of the denials were not blank, and so plaintiff fails to raise a triable issue of fact as to whether the denials were facially defective. Plaintiff also asserts that defendant “fails to use the proper denial of claim form (statutory version of the NF-10 form) (Rybak affirmation ¶ 186). To the extent that plaintiff is arguing that the denial of claim forms were not issued using the most current version of the NF-10 form, defendant’s use of “outdated” denial of claim forms is not a fatal defect, “as they contain substantially the same, pertinent information as prescribed forms” (Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of NY, 71 Misc 3d 140[A], 2021 NY Slip Op 50491[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Contrary to plaintiff’s argument, the denials adequately apprised plaintiff that the bills were denied due to plaintiff’s failure “to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017” (see defendant’s exhibits E-H, NF-10 forms). Notably, “a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs” (JYW Med., P.C. v IDS Prop. Ins. Co., 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

c. Timeliness of Denials

Because all the denials were issued more than 30 days after the bills were received, the issue presented is whether the 30-day period for defendant to pay or otherwise deny plaintiff’s claims was properly tolled for each bill. Plaintiff generally asserts that defendant failed to toll the payment period by timely requesting an EUO (Rybak affirmation ¶ 169).

If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])”

(Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]).Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132 [A], 2011 NY Slip Op 50601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “[A] follow-up [*14]request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination” (ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

As plaintiff correctly points out, delay letters which inform plaintiff that defendant was investigating the claims and was in the process of obtaining verification, which included examinations under oath, are insufficient to toll the 30-day statutory time period (Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Because defendant requested plaintiff’s EUO prior to its receipt of the bills, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 did not apply to those pre-claim EUO requests (Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). However, once the bills are received, defendant is required to comply with the follow-up provisions of 11 NYCRR 65.36 (b) (Mapfre Ins. Co. of NY, 140 AD3d at 470).

i. Tolling with respect to Bill #1

For bill #1, an EUO was scheduled on January 23, 2017, after receipt of bill #1 on January 20, 2017, and plaintiff failed to appear. A follow-up EUO scheduling letter was timely sent on January 25, 2017, within 10 days of the missed EUO, for another EUO to take place on March 21, 2017, where plaintiff did not appear as well. Another follow-up scheduling letter was timely sent on March 23, 2017, within 10 days of the missed EUO, for an EUO to take place on May 19, 2107. Thus, plaintiff failed to appear at three EUOs scheduled to take place after the receipt of bill #1.

“Where, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage”

(Quality Health 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]).

As defendant did not deny bill #1 until June 8, 2017, which was more than 30 days after plaintiff’s second failure to appear, for the EUO scheduled for March 21, 2017, defendant is not entitled to summary judgment dismissing bill#1, because defendant did not demonstrate that it is not precluded from raising its proffered defense as to bill #1 (see id.).

Therefore, summary judgment dismissing the first cause of action is denied.

iii. Tolling with respect to Bills #2-5

For bills #2-5, a pre-claim EUO scheduling letter was sent on January 25, 2017 before the defendant’s receipt of bills #2-5 on February 6, 2017. The only EUO scheduling letter in the record after receipt of bills #2-5 was a follow-up EUO scheduling letter sent on March 23, 2017, more than 30 days after the receipt of bills #2-5.

On the issue of whether pre-claim EUO requests toll the 30-day determination period to pay or otherwise deny a claim, the Appellate Term, Second Department has issued conflicting decisions on that issue.

In Doctor Goldshteyn Chiropractic, P.C., the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a [*15]claim. There, the defendant mailed a scheduling letter to plaintiff’s assignor on January 4, 2011, and the defendant received the plaintiff’s bill on January 21, 2011 (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] at *1). The Appellate Term ruled, “defendant’s time to pay or deny these claims, which defendant received on January 21, 2011, was tolled” (id.).

In Vitality Chiropractic, P.C. v Kemper Insurance Company (14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Appellate Term held, “the tolling provisions of the insurance regulations do not apply” to pre-claim verification requests. There, the defendant had scheduled IMEs of the plaintiff’s assignor by letters dated May 22 and 23, 2002, which pre-dated the receipt of the plaintiff’s claim on May 30, 2002. The Appellate Term ruled that the defendant’s denial of the claim on July 11, 2002 (which was more than 30 days after the receipt of the plaintiff’s bill) was untimely (id. at 96).

Vitality Chiropractic, P.C. and Doctor Goldshteyn Chiropractic, P.C. cannot be reconciled. The logic of Vitality Chiropractic, P.C. has straightforward appeal: the toll is based on outstanding verification requests made pursuant to 11 NYCRR 65-3.5 (see 11 NYCRR 65-3.8 [a][1], [b][3]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Given that the Appellate Term, Second Department has held that 11 NYCRR 65-3.5 does not apply to pre-claim requests at all, it logically follows that pre-claim requests cannot toll the 30-day period. Vitality Chiropractic, P.C. relied upon the Appellate Term’s prior decision in Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Company, which held that “the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form” (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). Citing Stephen Fogel Psychological, P.C., lower courts therefore concluded that a denial based on a pre-claim IME was proper so long as the insurer mailed the denial within 30 days of its receipt of the claim (see e.g. Lender Med. Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226[A], 2012 NY Slip Op 50903[U] [Civ Ct, Kings County 2012]; Prime Psychological Servs., PC v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; cf. All-Boro Medical Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008] [if defendant insisted upon conducting a pre-claim EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from the date it received the claim]).

By comparison, Doctor Goldshteyn Chiropractic, P.C. did not explain why it ruled that a pre-claim EUO request tolled the defendant’s time to pay or deny the plaintiff’s claim. The court cited ARCO Medical NY, P.C. v Lancer Insurance Company (34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which had different facts. In ARCO Medical NY, P.C., the EUO requests were sent within 15 days after the defendant received the plaintiff’s claims (id. at *2). Also, it is not clear that the plaintiff in Doctor Goldshteyn Chiropractic, P.C. had actually argued that pre-claim requests could toll the 30-day period. Rather, the plaintiff apparently argued that there was no toll because an issue of fact arose as to whether the scheduling letters were mailed, which the court rejected (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U]). No appellate cases have followed Doctor Goldshteyn Chiropractic, P.C.

In deciding which case this court should follow, the Appellate Division, Second Department’s decision in Sound Shore Medical Center v New York Central Mutual Fire [*16]Insurance Company (106 AD3d 157 [2d Dept 2013]) is instructive. There, the defendant-insurer received a UB-04 form from the plaintiff-hospital, which prompted the insurer to send two “requests for verification” to the hospital (id. at 159). Thereafter, the insurer received a NF-5 form from the hospital, which prompted the insurer to send another verification request, but the insurer neither denied the claim nor sent another verification request (id. at 160).

The insurer argued that the hospital’s claim was premature because the hospital did not respond either to the insurer’s initial verification request following receipt of the UB-04 form, or to the verification request following receipt of the NF-5 form. However, the hospital argued that it was entitled to summary judgment in its favor because the UB-04 form was not the functional equivalent of a NF-5 form. Because the insurer did not send a follow-up verification request after sending an initial verification request when it received the NF-5 form, the hospital argued that the insurer’s time to pay the claim had not been tolled.

The Appellate Division agreed with the hospital, and it held that the hospital’s submission of a UB-04 form was not the functional equivalent of a NF-5 form, which would have triggered the 30-day period for the insurer to pay or deny a claim, or to seek verification of the claim (id. at 162, 163). The Appellate Division also ruled, “a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” (id. at 164 [emphasis supplied]).

Given all the above, this court therefore follows Vitality Chiropractic, P.C. Although Doctor Goldshteyn Chiropractic, P.C. is a more recent decision, Vitality Chiropractic, P.C. is based on the Appellate Term’s rulings in Stephen Fogel Psychological, P.C., which was affirmed by the Appellate Division, Second Department (Stephen Fogel Psychological, P.C., 7 Misc 3d 18 at 21, affd 35 AD3d 72). Additionally, Vitality Chiropractic, P.C. is consistent with the Appellate Division’s ruling in Sound Shore Medical Center, that pre-claim verification requests involving a hospital claim did not toll the 30-day period, and is consistent with the Appellate Term, First Department’s decision in Okslen Acupuncture, P.C. (39 Misc 3d 144[A], 2013 NY Slip Op 50821[U]).

Accordingly, the pre-claim EUO scheduling letter was sent on January 25, 2017 did not toll the 30-day period for defendant to pay or otherwise deny bills #2-5, which ended on March 8, 2017. Although the follow-up EUO scheduling letter was sent within 10 days of missed EUO on March 21, 2017, the follow-up EUO scheduling letter was sent on March 23, 2017, more than 30 days after the receipt of bills #2-5 on February 6, 2017. Thus, defendant failed to demonstrate any tolling with respect to bills #2-5 (see Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129 [A], 2012 NY Slip Op 51268 [U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

Therefore, summary judgment dismissing the second, third, fourth, and fifth causes of action is denied.

i. Tolling with respect to Bills #6-8

For bills #6-8, a pre-claim EUO scheduling letter was sent on January 25, 2017, for an EUO to take place on March 21, 2017, which was within 30 days of the receipt of bills #6-8 on February 25, 2017. A follow-up EUO scheduling letter was sent on March 23, 2017, for an EUO to take place on May 19, 2017.

As discussed above, defendant’s pre-claim EUO scheduling letter sent on January 25, [*17]2017 did not toll the 30-day period to pay or otherwise deny bills #6-8.

The only verification request in the record which was sent after bills #6-8 were received was the follow-up EUO scheduling letter sent on March 23, 2017. Because this verification request was sent within 30 days of the receipt of bills #6-8, and was sent within10 days after the missed EUO on March 21, 2017, the follow-up EUO scheduling letter sent on March 23, 2017 was timely and tolled defendant’s time to pay or otherwise deny bills #6-8 through the EUO scheduled on May 19, 2017. Because defendant issued the denial of bills #6-8 on June 8, 2017, which was within 30 days of the missed EUO on May 19, 2017, defendant demonstrated that the denial of bills #6-8 was timely.

In this court’s view, Quality Health Supply Corp. v Nationwide Insurance (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U]) does not dictate a different result. Although plaintiff failed to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, it is this court’s view that defendant’s time to pay or otherwise deny bills #6-8 did not run from missed EUO on March 21, 2017, because the January 23, 2017 EUO was scheduled to take place prior to the receipt of bills #6-8.

As discussed above, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to pre-claim EUO requests (Manoo, 140 AD3d at 469; Stephen Fogel Psychological, P.C., 7 Misc 3d 18, 21, affd 35 AD3d 720). Also, as discussed above, pre-claim EUO requests do not toll the 30-day period for an insurer to pay or otherwise deny a claim. Therefore, it would not make sense to consider any pre-claim EUO in determining when the insurer’s toll has ended.

To illustrate, suppose the insurer had scheduled two EUOs of plaintiff to take place on January 23, 2017 and March 21, 2017, prior to receipt of the bills on May 19, 2017, and plaintiff had failed to appear at those pre-claim EUOs. Taking Quality Health Supply Corp. literally, the insurer’s time to pay or otherwise deny the claims would run from the second missed EUO on March 21, 2017, even though the insurer has yet to receive the bills.

Thus, this court interprets Quality Health Supply Corp. to apply to those EUOs that are scheduled to occur after the insurer’s receipt of the bills at issue. In this case, because the only EUOs that were scheduled to occur after the receipt of the bills #6-8 were the EUOs on March 21, 2017 and May 19, 2017, the 30-day period for defendant to pay or otherwise deny bills #6-8 ran from May 19, 2017.

Plaintiff fails to raise a triable issue of fact as to whether the 30-day period was tolled as to bills #6-8.

Therefore, defendant is entitled to summary judgment dismissing the sixth, seventh, and eighth causes of action, based on plaintiff’s failure to appear at EUO scheduled on March 21, 2017 and May 19, 2017.

Although defendant is entitled to judgment dismissing three out of the eight causes of action against it, this court exercises its discretion not to grant any costs to defendant with respect that judgment (see CPLR 8103). As discussed in the next section of this decision, on the issue of costs and disbursements (which was not addressed by either party), plaintiff is the prevailing party in this action. Because much of the elements of defendant’s prima facie burden for the sixth, seven, and eighth causes of action were the same as the elements of the other causes of action on which plaintiff prevailed, this court does not view the sixth, seventh and eighth causes of action being as substantially different for this court to exercise its discretion under CPLR 8103 to award costs to defendant (cf. Gibson v Tsandikos, 23 AD3d 801, 802—03 [*18][3d Dept 2005]).

II. Plaintiff’s Cross Motion (Motion Seq. No. 002)

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(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]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, plaintiff established its prima facie entitlement for summary judgment in its favor against defendant as to bills #1-5, based on the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (see Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The denials also establish that the bills were not paid within 30 days after defendant’s receipt of those bills. As discussed above, the denials themselves were also untimely, and thus were without merit as a matter of law.

Thus, plaintiff is granted summary judgment in its favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15. Plaintiff is also entitled to prejudgment interest on bills #1 through #5 at the rate of 2% per month from November 2, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Plaintiff is also granted summary judgment in its favor on the ninth cause of action against defendant, for attorneys’ fees (11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #1 through #5 ($922.15) plus interest, subject to a maximum of $1,360 (id.; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]).

On the issue of costs and disbursements (which was not addressed by either party), plaintiff prevailed in obtaining summary judgment in its favor on five out of the eight causes of action against defendant, and plaintiff is entitled to recover exactly half of the total amount sought against defendant (exclusive of interest and attorneys’ fees). Thus, plaintiff is the prevailing party entitled to recover costs of the action from defendant, in the amount of $20.00, as a notice of trial has not been filed and the amount of the judgment is not more than $6,000 (CPLR 8101; NY City Civ Ct Act § 1901 [b] [1]). Having been awarded costs, plaintiff is also therefore entitled to recover any disbursements (CPLR 8301; NY City Civ Ct Act § 1908).

The branch of plaintiff’s motion for summary judgment in its favor on the sixth through eighth causes of action against defendant is denied. As discussed above, defendant demonstrated that it timely denied bills #6-8 based on the failure of plaintiff to appear for duly scheduled [*19]EUOs on March 21, 2017 and May 19, 2017.

The branch of plaintiff’s motion to compel defendant to comply with discovery demands is denied as academic.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that defendant’s motion for summary judgment dismissing the complaint (Motion Seq. No. 001) is GRANTED IN PART TO THE EXTENT that the sixth, seventh, and eighth causes of action are severed and dismissed, and the remainder of defendant’s motion is otherwise denied; and it is further

ORDERED that the branch of plaintiff’s cross motion for summary judgment in its favor against defendant (Motion Seq. No. 002) is GRANTED IN PART TO THE EXTENT that summary judgment is granted in plaintiff’s favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15, with prejudgment interest from the date of November 2, 2017; and judgment is granted in plaintiff’s favor on the ninth cause of action for attorneys’ fees in the amount of 20% of the sum of $922.15 plus the accrued prejudgment interest, as calculated by the Clerk, subject to a maximum of $1,360, with costs and disbursements to plaintiff upon submission to the Clerk upon an appropriate bill of costs, and the remainder of plaintiff’s cross motion is denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the prior decision and order dated July 12, 2021 is hereby recalled and vacated.

This constitutes the amended decision and order of the court.

Dated: July 13, 2021
New York, New York
ENTER:
________________________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Defendant did not submit a copy of the purported letter from plaintiff’s counsel dated May 18, 2017 or the purported letter from defendant’s counsel dated June 1, 2017.

Footnote 2: Plaintiff also commenced a separate action against defendant to recover assigned first-party no-fault benefits concerning eight bills for dates of service during the period of November 8, 2016 through January 5, 2017, MSB Physical Therapy P.C. a/a/o Bright, Sayquan U v Nationwide Ins., Civ Ct, Kings County, Index No. CV-739338-17/KI.

Footnote 3: In opposition to plaintiff’s cross motion, defendant also argues that, in another action involving the parties for different dates of service from September 9, 2016 through November 3, 2016, another judge of this court determined that plaintiff failed to appeared at EUOs (see defendant’s exhibit A in opposition to plaintiff’s cross motion, MSB Physical Therapy, P.C. a/a/o Sayquan U. Bright v Nationwide Ins., Civ Ct, Kings County, May 8, 2019, Walker-Diallo, J., index No. CV-729770-17/KI).

In light of this court’s determination that defendant’s submissions in its moving papers established plaintiff’s failures to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, this court need not reach defendant’s arguments of res judicata and collateral estoppel, which were essentially new arguments raised for the first time in reply in support of summary judgment dismissing this action.

This court notes that the decision in the other action, which ruled that plaintiff had failed to appear at EUOs, appears to concern only the EUOs on November 21, 2016 and January 23, 2017 (see id., at 7-8). The decision did not discuss any proof with respect to the other EUOs scheduled on March 21, 2017 or May 19, 2017.

Footnote 4: For each bill, defendant submitted an affidavit from Taylor that is 14 paragraphs long (see defendant’s exhibits E-H [hereinafter, Taylor long aff]). These affidavits are identical, except as to paragraph 12.

Defendant also submitted another affidavit from Taylor that is nine paragraphs long and is identical for each bill (see defendant’s exhibits E-H [hereinafter, Taylor short aff]).

Footnote 5: Although plaintiff’s counsel contends that the bills were mailed to Nationwide in “Harrisburg, PA” (Rybak affirmation ¶ 374), defendant’s address on the NF-3 forms was in “Daphne, AL” (see defendant’s exhibits E-H in support).

Okslen Acupuncture, PC A/A/O Pablo Bello, Plaintiff(s), against State Farm Mutual Automobile Insurance Company, Defendant(s).

CV-35369/10

Counsel for plaintiff: Gary Tsirelman PC

Counsel for defendant: McDonnell Adels & Klestzick PLLC

Fidel E. Gomez, J.

In this action for the payment of no-fault benefits, defendant seeks an order pursuant to CPLR § 3126, striking the complaint for plaintiff’s failure to provide court-ordered discovery. Defendant contends that despite this Court’s two prior orders, one of which conditionally calls for preclusion, and both requiring responses to defendant’s discovery demands and that plaintiff appear for a deposition, plaintiff has failed to provide the responses requested and has failed to appear for a deposition. Plaintiff opposes the instant motion, asserting that it has fully complied with the prior orders by providing responses to defendant’s discovery demands, that defendant has waived plaintiff’s deposition by refusing to hold and/or attend the same, and that insofar as this Court’s prior order is a self-executing order of preclusion, the instant motion seeks duplicative relief.

For the reasons that follow hereinafter, defendant’s motion is granted, in part.

The instant action is for the payment of medical benefits pursuant to Article 51 of the New York State Insurance Law. It is alleged that secondary to a motor vehicle accident on April 1, 2006, plaintiff provided medical services to PABLO BELLO, who assigned his no-fault benefits under the Insurance Law and defendant’s policy to plaintiff. Plaintiff, upon presenting proof of the foregoing services, requested payment totaling $1,560. Defendant has failed to pay the foregoing amount and thus, plaintiff seeks a judgment in the amount of $1,560.

Within its answer, defendant interposes a legion of affirmative defenses, including number 21, wherein defendant alleges that it is not obligated to pay plaintiff “[b]ecause the services at issue were not conducted and/or supervised by a licensed physician/medical professional.”

Defendant’s motion seeking to strike the complaint based on plaintiff’s failure to provide complete and meaningful responses to defendant’s Demand for Interrogatories and Notice for Discovery and Inspection is granted to the extent of striking the complaint should plaintiff fail to [*2]provide the discovery previously ordered by this Court and reiterated below. As will be discussed hereinafter, plaintiff was required to produce the discovery at issue pursuant to the Court’s two prior orders. Although the last order conditionally ordered sanctions for plaintiff’s noncompliance, such sanction did not accord defendant complete relief and instead incentivized plaintiff’s noncompliance.

In support of the instant motion, defendant submits its Demand for Interrogatories and Notice for Discovery and Inspection dated June 19, 2014 ^[FN1] . To the extent relevant, question six of the Demand for Interrogatories seeks information regarding plaintiff’s owners and shareholders. Question eight seeks salary information for plaintiff’s owners and shareholders. Similarly, many requests in defendant’s Notice for Discovery and Inspection seek information related to the plaintiff’s corporate structure. For example, question two seeks lease information for plaintiff’s office space and questions seven and 12 seek tax information for Oksana Lendel (Lendel), purportedly plaintiff’s owner.

Defendant submits the Court’s (Doherty, J.) prior order dated June 14, 2017, which was issued in response to defendant’s first motion to strike plaintiff’s Notice of Trial, strike the complaint, and/or compel plaintiff to comply with defendant’s discovery demands. Within said order, the Court directed that plaintiff “provide complete and verified responses to defendant’s discovery demands within 60 days.” The Court also ordered that plaintiff was to appear for a deposition within 60 days.

Defendant also submits plaintiff’s first response to defendant’s Demand for Interrogatories and Notice for Discovery Inspection, dated July 12, 2017. A review of the responses evinces that plaintiff objected to disclosure of much of the information sought. For example, plaintiff objected to questions six and eight in the Demand for Interrogatories and questions seven and 12 of defendant’s Notice for Discovery and Inspection, which sought tax and financial records for plaintiff and Lendel.

Defendant submits a letter it sent to plaintiff dated June 29, 2017, wherein defendant scheduled Lendel’s deposition for August 14, 2017. Defendant submits a deposition transcript dated August 14, 2017, wherein defendant’s counsel states that he was present for plaintiff’s deposition but that neither anyone on plaintiff’s behalf, Lendel, nor its counsel appeared.

Defendant submits the Court’s (Semaj, J.) order dated January 7, 2020, wherein in response to defendant’s second motion to strike the complaint and compel discovery, the Court again ordered that plaintiff provide “complete and verified responses to defendant’s discovery demands within 30 days.” The Court also ordered the same with regard to plaintiff’s deposition and indicated that the failure to comply with the foregoing would result in preclusion at trial.

Defendant submits plaintiff’s second response to defendant’s Demand for Interrogatories and Notice for Discovery Inspection, dated January 24, 2020. A review of the responses evinces that they are similar to the responses previously provided in that plaintiff still objected to the disclosure of much of the information sought. For example, plaintiff still objected to question eight in the Demand for Interrogatories, seeking salary information for plaintiff’s owner and its [*3]shareholders and questions seven and 12 of defendant’s Notice for Discovery and Inspection, seeking tax and financial information for plaintiff and Lendel.

Defendant submits an affidavit by Joseph Aterno (Aterno), an Investigator employed by defendant, who states, in pertinent part, as follows. Defendant has been investigating plaintiff with regard to its treatment methods, procedures and billing practices. Defendant suspects that plaintiff is not properly licensed, thereby violating, inter alia, the Business Corporation Law. Defendant also believes that plaintiff has been rendering treatment via independent contractors. Significantly, defendant believes that Lendel, who per documents filed with the Department of Education of the State of New York, is plaintiff’s owner, does not actually own plaintiff, a corporation. Instead, defendant believes that plaintiff is actually owned and controlled by individuals not licensed to practice medicine, which is a violation of New York State Law. Aterno states that plaintiff renders medical treatment in at least eight locations and each location is affiliated with other providers who are under investigation by defendant for illegal incorporation and for ties to management companies, which are owned by unlicensed laypersons.

In addition to plaintiff, Lendel owns JOV Acupuncture PC (JOV). It is defendant’s belief that plaintiff and JOV are reincarnations of prior acupuncture clinics owned by Valentina Anikeyeva (Anikeyeva), which defendant found were controlled and operated by her husband, Andrey Anikeyeva (Andrey). Significantly, on July 28, 2009, at a deposition, Anikeyeva testified that Andrey was responsible for almost every aspect of Anikeyeva’s clinics. On May 4, 2007, at an arbitration, Andrey testified that he was the only person authorized to sell shares of Anikeyeva’s clinic’s shares. Plaintiff was formed in 2004, just as Anikeyeva closed her clinics in 2005. After Lendel incorporated JOV, he then took over Anikeyeva’s practice at the same locations where Anikeyeva’s clinics had previously been. On March 7, 2006, at a deposition, Lendel testified that JOV and plaintiff used the same treatment locations as Anikeyeva’s prior clinics, used the same acupuncturists, employees, billing department, and attorney.

“The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits” (Rios v Donovan, 21 AD2d 409, 411 [1st Dept. 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is “material and necessary” to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The terms

material and necessary, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable

(id. at 406 [internal quotation marks omitted]). In other words, information that is relevant to an issue in a case is discoverable (Wadolowski v Cohen, 99 AD3d 793, 794 [2d Dept 2012] [“It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy.”]; Crazytown Furniture, Inc. v Brooklyn Union Gas Co., 150 AD2d 420, 420 [2d Dept 1989]). Whether information is [*4]discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable merely if it “may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, “unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court’s determinations should not be disturbed on appeal (id.).

Pursuant to CPLR § 3126,

[i]f any party, or a person . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or . . . an order striking out pleadings or parts thereof.

It is well settled that “[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party’s pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).

Where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party’s pleading is unwarranted (Palmenta v Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party’s pleading warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance [*5]Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999]).

Under 11 NYCRR 65-3.16(a)(12), a provider need only be licensed for reimbursement. However, it is also settled that in New York, while “a fraudulently incorporated medical company is a provider of health care services within the meaning of the regulation[s]” (State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d 313, 321 [2005]), such provider is not entitled to reimbursement under the no-fault laws (id. at 320 [“We accepted the certification and now answer that such corporations are not entitled to reimbursement.”]). Indeed, merely being licensed is not dispositive because “[t]he fact remains that the reimbursement goes to the medical service corporation that exists to receive payment only because of its willfully and materially false filings with state regulators” (id. at 320). Whether a corporation is fraudulently incorporated for purposes of reimbursement turns on whether the corporation runs afoul of BCL § 1508(a), which states that

[n]o individual may be a director or officer of a professional service corporation unless he is authorized by law to practice in this state a profession which such corporation is authorized to practice and is either a shareholder of such corporation or engaged in the practice of his profession in such corporation.

Accordingly, in cases where there is an issue as to whether a medical provider is entitled to reimbursement under the no-fault law for medical services provided to an injured party on grounds that said provider was fraudulently incorporated, in violation of state and local law, disclosure of said provider’s financial records is warranted as they are material and necessary (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008] [“The Supreme Court properly granted that branch of the plaintiffs’ cross motion which was for disclosure of certain financial documents. Contrary to the appellants’ contention, the plaintiffs were not required to make a showing of “good cause” for such disclosure, as the documents were material and necessary in the prosecution of this action”] [internal citation and quotation marks omitted].). Indeed, in cases where fraudulent incorporation is at issue, broad discovery on that issue, meaning information to determine whether plaintiff was fraudulently incorporated, is warranted (Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 60 [App Term 2006] [“Consequently, we find that discovery requests seeking information to determine whether the owners of a medical service corporation are improperly licensed are germane to the question of whether said corporation is eligible for reimbursement.”]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90, 93 [App Term 2006]; Val. Physical Medicine and Rehabilitation P.C. v New York Cent. Mut. Ins. Co., 193 Misc 2d 675, 676 [App Term 2002]). Such discovery extends to information related to a provider’s licensing status and corporate structure (Val. Physical Medicine and Rehabilitation P.C. at 676).

Based on the foregoing, defendant’s motion must be granted to the extent of striking the complaint should plaintiff fail to provide the information requested within defendant’s Demand for Interrogatories and Notice for Discovery Inspection, dated June 19, 2014. The same is true should plaintiff fail to appear for a deposition. Here, it is clear that given the Court’s two prior orders requiring plaintiff to produce the information within the aforementioned discovery demands, plaintiff’s failure to respond, by objecting and withholding discovery, constitutes a clear violation of the Court’s orders.

Any contention that plaintiff complied with the Court’s prior orders because it was only [*6]required to respond to the foregoing demands and it reserved its right to object, is without merit. To be sure, while the prior orders facially merely required that plaintiff respond to defendant’s discovery demands, it is clear – given the nature of the motions giving rise to the orders and the submissions therewith – that the Court meant to compel compliance with defendant’s demands such that plaintiff was precluded from interposing objections. This is more true here, where defendant, after receiving plaintiff’s first response to its demands, moved to compel discovery pursuant to CPLR § 3124.

CPLR § 3124 allows a court to compel disclosure “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question, or order.” Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”]). Thus, by ordering plaintiff to provide further responses to defendant’s demand, it stands to reason that the Court found plaintiff’s objection inappropriate, requiring disclosure of the information to which plaintiff objected.

Notably, although plaintiff previously cross-moved for a protective order pursuant to CPLR § 3103, it did so belatedly and the fact that the prior Court orders are silent on that issue indicates that no such relief was granted. Indeed, when a party fails

to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 [such failure] forecloses inquiry into the propriety of the information sought, except as to material which is privileged under CPLR 3101 or as to requests which are palpably improper

(Muller v Sorensen, 138 AD2d 683, 684 [2d Dept 1988]). A review of the case law, however, evinces that generally, in order to avoid a waiver of the right to challenge requested discovery, a party must not merely object, but must also timely move for a protective order pursuant to CPLR 3103 (Roman Catholic Church of Good Shepherd v Tempco Sys., 202 AD2d 257, 258 [1st Dept 1994]; Zurich Ins. Co. v State Farm Mut. Auto. Ins. Co., 137 AD2d 401, 401 [1st Dept 1988]; Wood v Sardi’s Rest. Corp., 47 AD2d 870, 871 [1st Dept 1975]).

Pursuant to CPLR §3103, a court, by issuing a protective order, can limit or preclude disclosure. CPLR §3103 reads, in pertinent part,

[t]he court may at anytime on its own initiative, or on motion of any party or any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure devise. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court.

Thus, by issuing a protective order, a court can circumscribe the otherwise liberal scope of discovery, and in the exercise of its discretion, regulate the discovery process (Church & Dwight Co., Inc., v UDDO & Associates, Inc., 159 AD2d 275, 276 [1st Dept 1990]).

While CPLR § 3103 states that a motion for a protective order can be made at any time, a review of the case law indicates that with respect to discovery demands made pursuant to CPLR § 3120 or CPLR § 3121, such motion must be made within the 20 days prescribed by CPLR § [*7]3122, namely the time within which to assert any objections to duly served discovery demands (Roman Catholic Church of Good Shepherd at 258 [citing CPLR § 3122 as prescribing the time period within which to make a timely motion for a protective order]; Haller v North Riverdale Partners, 189 AD2d 615, 616 [1st Dept 1993] [same]). As noted above, the failure to timely move for a protective order within the 20 days prescribed by CPLR § 3122 constitutes a waiver and generally bars a party from obtaining a protective order (Coffey v Orbachs, Inc., 22 AD2d 317, 319-320 [1st Dept 1964]. The exception to this general rule only arises when a discovery demand is palpably improper (Haller at 616; 2 Park Avenue Associates v Cross & Brown Company, 60 AD2d 566, 566-567 [1st Dept 1977]; Wood at 870; Zambelis v Nicholas, 92 AD2d 936, 936-937 [2d Dept 1983]). When the discovery for which a protective order is sought is palpably improper, failure to timely move for a protective order will not constitute a waiver (id.).

Here, aside from the absence of any mention of a protective order – specifically, that one was granted – in the Court’s prior order, insofar as plaintiff made its prior cross-motion on or about February 8, 2016 and defendant’s demands are dated June 19, 2014, it is clear that the plaintiff sought such relief almost two years after 20 days within which to make a timely motion pursuant to CPLR § 3103 had expired. As such, plaintiff cannot object to any of the discovery demands sought.

Indeed, in order to foreclose all doubt about plaintiff’s obligation to produce all of the information requested in defendant’s discovery demand and because this Court’s two prior orders were very brief short form orders, bereft of any discussion of the law and how it applies to the facts in the record, the Court will now endeavor to detail why the discovery sought is both material and necessary, thereby requiring plaintiff to produce the same.

As noted above, when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog at 491; Helms at 204). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam at 801). With respect to discovery and what information can be discovered, the test is whether the information sought is material and necessary in that it bears “on the controversy which will assist preparation for trial by sharpening the issues” (Allen at 406). Stated differently, if the information sought is relevant to the issues raised by a party, it ought to be discovered (Wadolowski at 794; Crazytown Furniture, Inc. at 420). In cases where fraudulent incorporation is at issue, broad discovery on that issue, meaning information to determine whether plaintiff was fraudulently incorporated, is warranted (Midborough Acupuncture P.C. at 60; Lexington Acupuncture, P.C. at 93; Val. Physical Medicine and Rehabilitation P.C. at 676). Such discovery extends to information related to a provider’s licensing status and corporate structure (Val. Physical Medicine and Rehabilitation P.C. at 676).

Here, given defendant’s affirmative defense, sounding in fraudulent incorporation and Aterno’s affidavit, which in discussing facts which call into question whether plaintiff was fraudulent incorporated in violation of applicable laws, it is clear that the discovery sought by defendant, which seeks to discover plaintiff’s corporate structure by way of corporate, tax, and financial records, is relevant – material and necessary – and thus, discoverable. To be sure, if plaintiff was fraudulently incorporated, in that it is owned by non-medical laypersons, then [*8]plaintiff would not be entitled to no-fault payments for any treatment rendered. Indeed, it is precisely because of this very finding that the Court previously granted defendant’s two applications seeking to compel the very disclosure which plaintiff has sought to shield.

To the extent that plaintiff avers that it has already been sanctioned for its noncompliance – in that the Court (Semaj, J.) already issued a self-executing order of preclusion – such argument is without merit. To be sure, a defendant bears the burden of establishing all affirmative defenses (Flatau v Fairchild Camera & Instrument Corp., 40 AD2d 990, 990 [2d Dept 1972] [“The burden of such proof was on defendant in connection with its affirmative defense that procurement of Workmen’s Compensation benefits was plaintiff’s exclusive remedy.”]; Averbuck v Becher, 134 NYS 1112, 1113 [App Term 1912] [“The burden was on defendant to prove the affirmative defense.”]). Accordingly, here, where the information necessary to establish defendant’s defense is squarely in plaintiff’s possession, the remedy of preclusion only serves to shield that information from defendant, and incentivizes plaintiff from producing the same. As such, the appropriate remedy is dismissal of the action – meaning the striking of the complaint – should plaintiff fail to provide the discovery requested.

Contrary to plaintiff’s assertion, defendant’s decision to cancel the deposition scheduled for March 23, 2020 did not constitute a waiver of the same. As urged by defendant, in the absence of the document discovery sought by defendant, plaintiff’s deposition would have been relatively fruitless. Thus, defendant is entitled to plaintiff’s deposition once plaintiff complies with the Court’s two prior orders and this one. It is hereby

ORDERED that the plaintiff provide defendant with all of the information requested in defendant’s Demand for Interrogatories and Notice for Discovery and Inspection, dated June 19, 2014, within 60 days hereof. It is further

ORDERED that plaintiff is precluded from interposing objections to any of the foregoing discovery demands and unless it does not posses the information requested, it must provide the same. It is further

ORDERED that should plaintiff fail to comply with the foregoing directives, the complaint is automatically stricken and this case is dismissed, without further leave of court. It is further

ORDERED that plaintiff appear for a deposition at a date and time mutually convenient to all parties within 90 days hereof. It is further

ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.

This constitutes this Court’s decision and Order.

Dated: July 9, 2021

Bronx, New York
FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1:Defendant’s submissions primarily consist of its prior two motions seeking discovery sanctions and the Court discusses only those documents contained therein, which are pertinent to the instant decision.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019, as amended by order of that court dated June 19, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. After the parties stipulated to adjourn plaintiff’s motion, and two months after the deadline provided for in the stipulation, defendant served a cross motion for summary judgment dismissing the complaint. In an order entered June 2, 2017, the Civil Court (Robin Kelly Sheares, J.) declined to consider defendant’s cross motion, treated defendant’s submission as opposition to plaintiff’s motion, denied plaintiff’s motion for summary judgment, and stated that plaintiff “made out their prima facie case for all purposes in this matter” and that the “[c]ase shall proceed to trial on the defenses raised in NF-10s.”

Defendant thereafter moved for summary judgment dismissing the complaint. By order dated April 3, 2019 and entered April 5, 2019, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion as moot on the ground that the June 2, 2017 order had denied its previous cross motion for summary judgment and that defendant “cannot move again for summary judgment.” By order dated June 19, 2019, the court “sua sponte supplement[ed] its April 3, 2019 order” and stated that “defendant’s attempt to submit a second motion for summary judgment . . . [*2]would effectively nullify [the] June 2, 2017 order.”

The Civil Court denied defendant’s motion based, in part, upon the rule against successive motions for summary judgment (see e.g. Williams v City of White Plains, 6 AD3d 609, 609 [2004]; Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2004]). However, that rule does not apply here because defendant’s initial cross motion for summary judgment was not considered by the court. The Civil Court also denied defendant’s motion based upon law of the case. However, the statement in the June 2, 2017 order that the “[c]ase shall proceed to trial on the defenses raised in the NF-10s” is not a directive that the matter proceed to trial. Rather, it is a directive as to what will happen at trial, as the court, in effect, made CPLR 3212 (g) findings in plaintiff’s favor limiting the trial to those defenses (see Maxford, Inc. v Erie Ins. Co. of NY, 60 Misc 3d 135[A], 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Moreover, the statement is not a judicial determination that decided an issue being litigated by the parties, and is therefore not the kind of determination that is binding law of the case (see generally People v Evans, 94 NY2d 499 [2000]). Thus, defendant’s instant motion, contrary to the Civil Court’s determination, is not moot.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021