Index No. CV-723275-19/QU

Plaintiff’s counsel:
Mandell & Santora PC
29 Broadway
Lynbrook, NY 11563

Defendant’s counsel:
Rosillo & Licata LLP 355 Post Avenue, Suite 204
Westbury, NY 11590

I. Papers

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723275-19/QU dated February 10, 2020 (“Motion 1“) and file stamped by the court on February 13, 2020. 1

Plaintiff’s Affirmation in Opposition under index number CV-723275-19/QU dated May 19, 2020 (“Opposition 1“) and electronically filed with the court on May 20, 2020. 2

Defendant’s Reply Affirmation under index number CV-723275-19/QU dated April 27, 2021 (“Reply 1“) and electronically filed with the court on May 12, 2021. 3

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723253-19/QU dated February 10, 2020 (“Motion 2“, together with Motion 1, the “Motions“) and file stamped by the court on February 13, 2020. 4

Plaintiff’s Affirmation in Opposition under index number CV-723253-19/QU dated May 19, 2020 (“Opposition 2“) and electronically filed with the court on May 20, 2020. 5

Defendant’s Reply Affirmation under index number CV-723253-19/QU dated April 27, 2021 (“Reply 2“) and electronically filed with the court on May 12, 2021. 6

In a summons and complaint under index number CV-723275-19/QU filed on October 31, 2019, Plaintiff sued Defendant insurance company to recover $1,110.36 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Allen from June 29, 2019 to July 18, 2019, plus attorneys’ fees and statutory interest (see Motion 1, Aff. of Scozzari, Ex. A). In a summons and complaint under index number CV-723253-19/QU filed on October 31, 2019, Plaintiff sued Defendant to recover $970.96 in unpaid first party No-Fault benefits for medical services provided to Allen from August 14, 2019 to August 30, 2019 (see Motion 2, Aff. of Scozzari, Ex. A). In both actions, Defendant moved for summary judgment dismissing Plaintiff’s complaints on the ground that the services Plaintiff rendered to Allen were not medically necessary. Plaintiff opposed Defendant’s Motions. An oral argument by both parties was conducted before this Court on September 1, 2021. Both parties agreed that the arguments in both actions were identical except for the dates of service and the respective amounts claimed. For judicial efficiency, this Court decides both motions together because they raise identical issues of law within a virtually identical factual background.

III. Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim (Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Here, the affidavits of Defendant’s No-Fault examiner Dougert sworn February 6, 2020, which were appended to the Motions, establishing Defendant’s regular office mailing procedures showed Defendant timely denied Plaintiff’s claim (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; see Progressive Cas. Ins. Co. v Infinite Ortho Prods, Inc., 127 AD3d 1050, 1051 [2d Dept 2015]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

In our instant matters, Defendant based its denials of Plaintiff’s claims on lack of medical necessity. Defendant presented the sworn peer review report of Dr. T. McLaughlin, an acupuncturist and chiropractor, who reviewed Allen’s chiropractic examination report, pain fiber nerve conduction study, initial physical examination report, physical therapy progress notes, and physical therapy prescription from March 2019 (see Motions, Scozzari Aff., Ex. B). Dr. McLaughlin also performed a physical examination of Allen on April 30, 2019, in which he specified the tests he performed. Dr. McLaughlin tested Allen’s range of motion in the cervical, thoracic, and lumbar spine and the upper and lower extremities which revealed normal ranges of motion as compared to the maximum range and no other abnormalities. Dr. McLaughlin’s evaluation of Allen under traditional Chinese medicine also revealed normal findings. Here, Dr. McLaughlin’s report established lack of medical necessity for the services Plaintiff provided (Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *1 [App Term 2d Dept 2017]; Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066 * 1 [App Term 2d Dept 2015]; Lenox Hill Radiology & MIA, [*2]P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680 *1 [App Term 2d Dept 2015]; Ayoob Khodadadi, M.D., MRI, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 130[A], 2012 NY Slip Op 51968 * 1 [App Term 2d Dept 2012]).

In opposition, Plaintiff presented an affidavit dated May 4, 2020, in which Winslow, LA, who treated Allen, attested that she “reviewed the IME Report of Dorothy McLaughlin, DC, dated April 30, 2019.” (Opposition 1 and Opposition 2, Aff. of Nof, Ex. A at 1). Initially, this Court assumes that the reference to “Dorothy McLaughlin” in Winslow’s report was a typographical error. Based on review of medical records and treatment notes, Winslow attested that Allen had “reduced range of motion, continued complaints of pain and weakness, and reduced muscle strength, and continued complaints of tenderness and spasm,” (Id.) which indicated that Allen required further treatment. Winslow also attested that her treatment notes contradicted Dr. McLaughlin’s opinion, and concluded that additional physical therapy after the IME was medically necessary. Winslow’s affidavit “did not meaningly refer to, or discuss” Dr. McLaughlin’s report, so is insufficient to raise factual issues regarding medical necessity of the services Plaintiff provided (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50884[U] *2 [App Term 2d Dept 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] *2 [App Term 2d Dept 2009]). Similarly, Winslow’s statement that her treatment notes contradicted Dr. McLaughlin’s opinion was conclusory (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), particularly since Plaintiff did not present the notes to which she referred.

It is well established that “expert’s affidavit must contain four elements: (1) the expert’s qualification; (2) the facts underlying the expert’s opinion; (3) the technical, scientific or other authoritative basis supporting the opinion; and (4) the opinion itself” (Avoiding the Conclusory When Preparing Experts’ Affidavits, Feb. 27, 2015 N.Y.L.J.) and that conclusory opinions in expert affidavits lack probative value (Sparks v Detterline, 86 AD3d 601, 602 [2d Dept 2011]; Borras v Lewis, 79 AD3d 1084, 1085 [2d Dept 2010]). Once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party’s showing (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Here, in our instant matters, Defendant’s expert applied various facts, i.e., Allen’s medical history and current complaint, experts’ physical examination on Allen, Allen’s range of motion and Allen’s medical condition at cervical spine, upper extremities, thoracic, lower extremities and lumbar, to western modern medical science, technology and cited authorities, as well as to traditional Chinese medicine, and had come to a conclusion that Allen’s treatment was not medically necessary. On the contrary, Plaintiff’s expert omitted the requirements of an expert’s affidavit, i.e., the underlying facts and the scientific basis upon which her opinion relied, but simply stated a conclusion/an opinion that Allen’s treatment by her was medically necessary. Here, Plaintiff’s expert affidavit failed to sufficiently rebut Defendant’s expert affidavit, and thus failed to defeat Defendant’s prima facie showing.

This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims in both actions can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Innovative Chiropractic, P.C. v New York Cent. [*3]Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), and that Defendant is entitled to dismissal of Plaintiff’s complaints in both actions.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motions for summary judgment are granted and that Plaintiff’s complaints are dismissed in both actions, and it is further

ORDERED that the part clerk is directed to mark the index numbers in both actions disposed for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 17, 2021
Queens County Civil Court
____________________________________
Honorable Wendy Changyong Li, J.C.C.

 Gary Tsirelman, P.C. (Stefan Belinfanti and Gary Tsirelman of counsel), for appellant. Law Office of Tina Newsome-Lee, for respondent Travelers Property & Casualty Ins. Co. (no brief filed). Law Office of Goldstein, Flecker & Hopkins (Tali K. Hernstat of counsel), for respondent GEICO Casualty Insurance.

Appeals from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.; op 67 Misc 3d 171 [2020]), entered January 3, 2020. The order, insofar as appealed from, upon, in effect, granting the branch of plaintiff’s motion seeking to consolidate 27 actions, including the above-captioned 11 actions, for the purposes of the disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions.

ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff’s motion seeking to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff’s motion, and by further vacating the Civil Court’s findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion; as so modified, the order, insofar as appealed from, is affirmed, without costs.

These actions by a provider to recover assigned first-party no-fault benefits were commenced in 2000 and 2001. In 2009, plaintiff corporation voluntarily dissolved. In 2017, plaintiff brought the instant motion seeking to, among other things, consolidate the various [*4]actions for purposes of the motion and to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each action. Insofar as is relevant to this appeal, by order entered January 3, 2020, the Civil Court, upon, in effect, granting the branch of the motion seeking to consolidate the above-captioned actions for purposes of disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions (Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co., 67 Misc 3d 171 [Civ Ct, Queens County 2020]).

With respect to the action against Travelers Property & Casualty Ins. Co., the Civil Court denied plaintiff’s motion “due to Plaintiff’s failure to provide proof of service.” Since there was no argument made on this appeal that the action against Travelers Property & Casualty Ins. Co. was improperly dismissed, we do not disturb that part of the order.

With respect to the 10 actions against GEICO Casualty Insurance, the court found that plaintiff, as a dissolved corporation, was no longer winding up its affairs (see Business Corporation Law §§ 1005, 1006) and thus was required to be substituted pursuant to CPLR 1017. The court further found that plaintiff had not sought substitution within four months or “a reasonable time” (CPLR 1021) following its dissolution, and, thus, had no standing to bring the instant motion.

With certain exceptions not applicable here, “a corporation or voluntary association shall appear by attorney” (CPLR 321 [a]), and “[a] party’s choice of counsel is a substantive right not to be taken away absent some overriding public interest” (Petrossian v Grossman, 219 AD2d 587, 588 [1995]). As plaintiff cannot take any action or make any arguments in the cases involving GEICO Casualty Insurance without an attorney, we vacate so much of the order as denied the branches of plaintiff’s motion seeking to substitute counsel in these 10 actions and grant those branches of the motion. In light of the foregoing, any findings made by the Civil Court regarding whether plaintiff needed to be timely substituted (see CPLR 1017, 1021) and/or whether plaintiff was properly still winding up its affairs (see Business Corporation Law §§ 1005, 1006) were premature and are vacated.

Accordingly, the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff’s motion seeking to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff’s motion, and by additionally vacating the Civil Court’s findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion.

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

CV-714768-19/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Jaffe & Velasquez LLP

40 Wall Street, 12th Floor

New York, NY 10005

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 24, 2020 (“Motion”) and file stamped by the court on February 7, 2020. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated August 19, 2020 (“Cross-Motion”) and electronically filed with the court on August 24, 2020. 2

Defendant’s Affirmation in Opposition dated February 10, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on February 12, 2021. 3

II. Background

In a summons and complaint filed July 25, 2019, Plaintiff sued Defendant insurance company to recover $1,893.00 in unpaid first party No-Fault benefits for medical prescriptions provided to Plaintiff’s assignor Styles, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]) on the ground that Plaintiff lacked standing (CPLR 3211[a][3]) and failed to state a cause of action (CPLR 3211[a][7]). Plaintiff cross-moved for summary judgment on its claim against Defendant.

III. Discussion

The Mandatory Personal Injury Protection Endorsement is required in all automobile insurance contracts (11 NYCRR § 65-1.1[a]) which provides that “[i]n the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the [insurance] Company, or any of the [insurance] Company’s authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation” (see 11 NYCRR § 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-90 [2011]). Thus, as here, Plaintiff assignor Styles was required to provide notice of the accident to Defendant within thirty (30) days of the accident (Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, 879 N.E.2d 1291, 1293 (2007), see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-63 [2008]). The notice of accident requirement is a condition precedent to a No-Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 590).

As to the matter before this Court, in an affidavit sworn January 28, 2020, Mena-Sibrian, Defendant’s No-Fault Litigation/Arbitration Supervisor, attested that Defendant first received notice of Styles’ accident in a correspondence from MVAIC dated January 17, 2019 and postmarked February 5, 2019, which was more than thirty (30) days after Styles’ accident on October 9, 2018 (see Motion, Kang Aff., Ex. C). Mena-Sibrian claimed to have personal knowledge of the file based on her responsibility for the claim and “review of the file which was kept in the ordinary course of business by [Defendant]” (Motion, Kang Aff., Ex. C at 1). Since review of records kept in the ordinary course of business does not confer upon the affiant personal knowledge, Mena-Sibrian’s statement that Defendant first received notice of Plaintiff’s accident in the January 17, 2019 correspondence postmarked February 5, 2019 (see Motion, Kang Aff., Ex. F) is hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, [*2]935 [2d Dept 2021]). Because Mena-Sibrian did not identify the correspondence postmarked February 5, 2019 annexed as Exhibit F, she failed to authenticate it to render it admissible evidence (see Antoine v Kalandrishvili, 150 AD3d 941, 942 [2d Dept 2017]; Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]). Likewise, Mena-Sibrian’s account that Defendant “contacted MCVIAC [sic] via the telephone, and a MVIA [sic] representative notified [Defendant] that MVIAC received the initial notification of the loss on November 20, 2018” (Motion, Kang Aff., Ex. C at 3) was vague and clearly not based on Mena-Sibrian’s personal knowledge, so also failed to demonstrate the untimeliness of Plaintiff’s notice of the accident to MVAIC (see Nuzzi v Gallagher, 60 AD3d 653, 654 [2d Dept 2009]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968). Here, Defendant failed to establish its prima facie case with admissible evidence. Since Defendant failed to meet its burden of demonstrating entitlement to summary judgment, this Court denies Defendant’s motion for summary judgment without consideration of Plaintiff’s opposition (Luigi v Avis Cab Co., Inc., 96 AD3d 809, 810 [2d Dept 2012]; Alexander v Gordon, 95 AD3d 1245, 1246 [2d Dept 2012]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Plaintiff presented an affidavit dated March 27, 2020, in which Munson, Plaintiff’s biller, attested that, based on her review of Plaintiff’s records maintained in the ordinary course of business, Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (see Cross-Motion, Aff. of Jillian M. Enright, Ex. 2 at 1). Munson’s affidavit suffered from the same infirmity as the affidavit of Mena-Sibrian, in that the review of records did not imbue an affiant with personal knowledge, so Munson’s assertion regarding Plaintiff’s timely submission of claim was also hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d at 935). In addition, it is noted that the fact that Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (even if it was established by admissible evidence, while it did not here), does not provide that Styles had notified the insurance company within 30 days of the alleged car accident as required.

Although an insurer’s denial of claim form may establish the insurer’s receipt of a medical service provider’s claim and untimely denial of that claim, (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), Defendant’s denial of claim form dated May 7, 2019, which acknowledged receipt of Plaintiff’s claim on April 25, 2019, demonstrated that Defendant denied Plaintiff’s claim twelve (12) days after receiving it (see Motion, Kang Aff. Ex. E). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion without consideration of Defendant’s opposition (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

Dated: September 15, 2021

Queens County Civil Court

____________________________

Honorable Wendy Changyong Li, J.C.C.

The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (C. Stephen Hackeling, J.), dated April 16, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential Health Chiropractic, P.C. and denied the cross motion by Essential Health Chiropractic, P.C. for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied; as so modified, the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs’ assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Insofar as is relevant to this appeal, plaintiff Essential Health Chiropractic, P.C. (Essential) opposed the motion and cross-moved for summary judgment. Essential appeals from so much of the order of the District Court as granted the branch of [*2]defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential and denied the cross motion by Essential for summary judgment.

While defendant made a prima facie showing that the NF-10 forms denying claims which Essential had submitted were mailed, the affidavit of Essential’s owner was sufficient to raise an issue of fact as to whether the denial of claim forms at issue had been mailed to Essential (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). As an issue of fact exists, neither defendant nor Essential is entitled to summary judgment on so much of the complaint as was asserted by Essential (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The record before us also indicates that defendant failed to establish that it had timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) letters scheduling EUOs of Essential’s assignor, for which Essential’s assignor failed to appear, and that the assignor had also failed to appear for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment dismissing Essential’s claims based upon the assignor’s failure to comply with conditions precedent to coverage (see id.).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied.

VOUTSINAS, J.P., EMERSON and DRISCOLL, JJ., concur.

CV-711495-18/QU

Plaintiff’s counsel:
Baker & Cantin P.C.
63-36 99th Street
Rego Park, NY 11374

Defendant’s counsel:
Jaffe & Koumourdas LLP
40 Wall Street, 12th Floor
New York, NY 10005
Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated February 14, 2020 (“Motion”) and file stamped by the court on March 3, 2020 1

In a summons and complaint filed August 23, 2018, Plaintiff sued Defendant insurance company to recover $1,837.68 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Javier for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). In a summons and [*2]complaint dated and filed on November 5, 2018, Defendant commenced an action in Supreme Court, New York County (“Supreme Court Action“) against Javier, Plaintiff, and other nonparty medical service providers, seeking a judgment declaring that Defendant owed no duty to pay No Fault claims arising from Javier’s automobile accident because Javier failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Kang Aff., Ex. C). On September 16, 2019, Defendant moved in the Supreme Court Action for a default judgment against all defendants, including Javier and Plaintiff (see Motion, Kang Aff., Ex. F). In an order dated December 17, 2019 and entered December 19, 2019, Supreme Court granted Defendant’s motion for a default judgment and declared that Defendant was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Javier (Country-Wide Ins. Co. v Javier, Sup. Ct. NY County, December 17, 2019, K., J., Index No. 655488/18; Motion, Kang Aff., Ex. E). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]).

The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Judge K. rendered an order in the Supreme Court Action deciding Defendant in our instant case was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Plaintiff’s assignor, Javier (Motion, Kang Aff., Ex. E at 4). Therefore, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]). Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s [*3]default in the Supreme Court action has not been vacated (Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint is granted and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 8, 2021
Queens County Civil Court
Honorable Wendy Changyong Li, J.C.C.

Nightingale Law, P.C. (Michael S. Nightingale and Bryan Melnick of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jamin Koo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s amended cross motion seeking leave to amend its summons and endorsed complaint.

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

In this action by a provider to recover the principal sum of $3,268.16 representing assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that the action is premature. Defendant alleged that, on November 28, 2016, it received two bills dated November 21, 2016 from plaintiff totaling $3,268.16, for medical services provided to plaintiff’s assignor, Alan Bailey, on November 18, 2016. Each bill included a $241.50 electromyography service. Defendant further alleged that it timely mailed initial and follow-up requests for additional verification, and that plaintiff had not provided the requested verification with respect to the electromyography services.

On September 20, 2018, plaintiff served an amended cross motion seeking summary judgment and, pursuant to CPLR 3025 (b), leave to amend the summons and endorsed complaint such that it now sought to recover $2,785.16 for services rendered on November 18, 2016. Plaintiff claimed, in the papers submitted in support of its amended cross motion, that, in March [*2]2017, it had submitted two bills dated March 29, 2017 to defendant, for services rendered to Mr. Bailey on November 18, 2016, in the total amount of $2,785.16. The sole explanation for the submission of what plaintiff characterized as “amended bills” was a sworn statement by plaintiff’s medical billing supervisor that she “was made aware that the defendant was addressing bills with the incorrect amount and requesting verification for services that were mistakenly added to the bill.” Copies of the March 2017 bills were attached to plaintiff’s amended cross motion, which reflect all of the services billed for in the November 2016 submissions, with the exception of the two electromyography services. They are not labeled “amended bills,” nor is there any indication in this record that plaintiff communicated to defendant at the time that it intended to replace the November bills with the March bills. Defendant opposed the branch of plaintiff’s amended cross motion seeking summary judgment, but defendant’s papers were silent with respect to the branch of plaintiff’s amended cross motion seeking leave to amend its summons and endorsed complaint. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment and granted the branch of plaintiff’s amended cross motion seeking leave to amend the summons and endorsed complaint.

To the extent that defendant argues that the branch of plaintiff’s amended cross motion seeking leave to amend its summons and endorsed complaint should not have been granted because defendant was not served with it prior to a November 20, 2018 court appearance, the record does not support defendant’s contention. Plaintiff’s affidavit of service demonstrates that the amended cross motion was served on September 20, 2018. Defendant’s affidavit of service demonstrates that it served its papers a month later, on October 22, 2018. By failing to make any arguments in opposition to plaintiff’s request to amend the summons and endorsed complaint in those papers, defendant waived them and we do not consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

With respect to defendant’s motion for summary judgment, which sought dismissal of the original complaint prior to its amendment, defendant demonstrated that it had timely mailed initial and follow-up requests for verification upon receipt of plaintiff’s bills on November 28, 2016 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that its 30-day period to pay or deny those bills (see 11 NYCRR 65-3.8 [a] [1]) did not begin to run because verification remained outstanding. Defendant thus demonstrated, prima facie, that this action is premature.

Plaintiff has not raised an issue of fact precluding summary judgment dismissing the complaint on the ground that the action is premature. Whereas this action was commenced to recover the principal sum of $3,268.16 (the amount sought in the November bills), plaintiff has now elected not to pursue payment for the $483 electromyography services that were the subject of the outstanding verification requests, but it cannot retroactively create an obligation for defendant to have paid or denied the remaining claims totaling $2,785.16, thereby providing a basis for this action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op [*3]50347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). Under the circumstances presented, the submission of the March 2017 bills did not create a new obligation for defendant to pay or deny plaintiff’s duplicate claims for the remaining services, totaling $2,785.16, within 30 days, nor did it give defendant a new opportunity to request additional verification with respect to those services (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]; Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op 50347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), and plaintiff has not demonstrated that these bills were anything other than a nullity.

In view of the foregoing, we need not decide whether plaintiff could have ended the toll of defendant’s time to pay or deny the November 2016 claims by withdrawing the claims for electromyography services during claims processing, prior to the commencement of this action. Consequently, plaintiff did not raise a triable issue of fact and defendant’s motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted.

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

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 26, 2019. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In August 2013, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in September 2013. In April 2017, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On July 12, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint for want of prosecution. In opposition to the motion, plaintiff’s counsel’s calendar clerk submitted an affidavit wherein he stated that a notice of trial had been served upon defendant but it had not been filed with the court due to law office failure and that plaintiff had a meritorious cause of action. By order entered June 26, 2019, the Civil Court denied defendant’s motion, stating “[d]efendant was free to file the Notice of Trial it received or to have filed its own Notice of Trial at any juncture in this action.”

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med. P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff failed to file a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, defendant properly moved to dismiss the complaint. The Civil Court denied defendant’s CPLR 3216 motion on the ground that defendant could have filed its own notice of trial. This was improper because, while any party may file a notice of trial (see CCA 1301; CPLR 3402 [a]), defendant had no obligation to do so.

The affidavit submitted by plaintiff in opposition to defendant’s motion did not provide a detailed and credible explanation of the law office failure that had caused the attorney’s failure to file the notice of trial (see Premier Surgical Servs. P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Bayshore Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 141[A], 2017 NY Slip Op 51121[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). Under the circumstances presented, we find that plaintiff’s claim of law office failure (see CPLR 2005) did not rise to the level of a justifiable excuse (see Sacramone v Tunick, 54 AD2d 897 [1976]; see also Housen v Boston Mkt. Corp., 166 AD3d 593 [2018]).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

[*1]

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti, David M. Gottlieb, and Darya Klein of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff has no obligation to pay certain insurance claims, the defendants appeal from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered May 22, 2017. The order granted the plaintiff’s motion for a preliminary injunction restraining the defendants from enforcing against it any judgments obtained in certain related actions.

Ordered that the order is affirmed, with costs.

In March 2010, in response to various no-fault insurance collection actions commenced against it by the defendants, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) commenced this action seeking, inter alia, a judgment declaring that the professional corporations named as defendants in this action (hereinafter collectively the PC defendants) were not entitled to collect no-fault payments from it as they were unlawfully formed pursuant to New York law.

In November 2012, the defendants’ answer in this action was conditionally stricken unless they complied with certain discovery demands on or before January 7, 2013. The Supreme Court thereafter granted State Farm’s motion for leave to enter a default judgment against the defendants and entered judgment declaring that the PC defendants were unlawfully incorporated and were not entitled to collect no-fault benefits. The defendants appealed that order to this Court, which affirmed (see State Farm Mut. Auto. Ins. Co. v Anikeyeva, 130 AD3d 1007 [2015]).

In 2013, the defendant Andrey Anikeyeva pleaded guilty to federal charges involving health care fraud and mail fraud resulting from his role in operating acupuncture clinics via professional corporations which were not owned and controlled by a licensed acupuncturist as required by New York law. Anikeyeva was sentenced to a term of imprisonment of 31/2 years and ordered to pay restitution in excess of $4 million. Among the clinics involved in the fraudulent scheme was the defendant New Era Acupuncture, P.C. (hereinafter New Era).

In 2017, New Era attempted to enforce against State Farm a 2010 judgment New Era had obtained in a Civil Court action entitled New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (hereinafter the O’Neal action/the O’Neal judgment). In response, State Farm moved for [*2]a preliminary injunction restraining the defendants from enforcing against it any judgments obtained “in any underlying No-Fault action,” including the O’Neal judgment. The Supreme Court granted State Farm’s motion, and the defendants appeal.

“ ’Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff’s remedy lies exclusively in moving to vacate the judgment’ ” (McMahan v Belowich, 164 AD3d 1443, 1444 [2018], quoting DeMartino v Lomonaco, 155 AD3d 686, 688 [2017]; see Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]). However, “[a] cause of action for fraud and deceit will lie, even though perjury is present, where the perjury is merely a means to the accomplishment of a larger fraudulent scheme” (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d at 217; see McMahan v Belowich, 164 AD3d at 1444; Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 751-752 [2009]). In alleging a larger fraudulent scheme, the plaintiff must proffer more than conclusory and unsubstantiated allegations (see DeMartino v Lomonaco, 155 AD3d at 688; North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427, 428 [2005]).

Here, by proffering evidence of the federal prosecution against Anikeyeva, State Farm met its burden of demonstrating that the defendants obtained the O’Neal judgment as part of “ ’a larger fraudulent scheme’ ” (Specialized Indus. Servs. Corp. v Carter, 68 AD3d at 752, quoting Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d at 217), which was “ ’greater in scope than the issues determined’ ” in the O’Neal action (Specialized Indus. Servs. Corp. v Carter, 68 AD3d at 752, quoting Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533, 533 [2002]). Accordingly, the Supreme Court correctly determined that the exception to the general rule barring collateral attack applied in this case.

The defendants’ remaining contentions are without merit. Chambers, J.P., Brathwaite Nelson, Christopher and Zayas, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of and Karina Barska counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.

To vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). The Civil Court found that defendant demonstrated both “a reasonable excuse and meritorious defense,” and, on appeal, plaintiff limits its argument to defendant’s excuse, specifically stating that it is unnecessary, under the circumstances presented, for this court to consider whether defendant demonstrated that it has a meritorious defense. “The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination” (Green Apple Mgt. Corp. v Aronis, 55 AD3d 669, 669 [2008]).

In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant’s affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant’s practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.

Plaintiff’s remaining appellate contentions are relevant only to the branch of defendant’s motion seeking to dismiss the complaint, which was denied. Plaintiff is not aggrieved thereby and defendant has not cross-appealed from it.

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

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), dated September 18, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant 21st Century Insurance Company (21st Century) moved for summary judgment dismissing the complaint. In support of its motion, 21st Century submitted an order that had been entered on November 28, 2017 in a Supreme Court declaratory judgment action, which granted a motion brought by 21st Century, among other insurers, seeking a default judgment against the present plaintiff, among other providers. The annexed order found specifically that 21st Century and the other insurers were entitled to a default judgment on liability against the providers, but did not declare the rights of the parties. Plaintiff opposed defendant’s motion in the Civil Court. By order entered September 18, 2019, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint based upon a declaratory judgment that was entered in the Supreme Court on February 22, 2018 pursuant to the November 28, 2017 order. In response to the instant appeal by plaintiff, 21st Century submits the declaratory judgment, which declared, among other things, that 21st Century has no duty to pay any no-fault benefits to Noel E. Blackman in any current or future proceeding, because the provider is ineligible to collect no-fault benefits.

A court “may in general take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 [*2]AD3d 13 [2009]). In light of the Supreme Court’s declaratory judgment, of which we take judicial notice, we find no basis to disturb the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint under the doctrine of res judicata (see Wave Med. Servs., P.C. v Farmers New Century Ins. Co., 67 Misc 3d 137[A], 2020 NY Slip Op 50555[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In view of the foregoing, we reach no other issue.

Accordingly, the order is affirmed.

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