Decided on November 6, 2020

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

Serpe, Andree & Kaufman (Jonathan H. Kaufman of counsel), for appellant. D’Ambrosio & D’Ambrosio, P.C. (James J. D’Ambrosio of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered February 15, 2019. The order denied a petition, brought pursuant to CPLR 7510, to vacate an arbitration award and granted a cross petition to confirm the arbitration award.

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

Petitioner, State Farm Mutual Automobile Insurance Company, commenced this proceeding, pursuant to CPLR 7510, to vacate an arbitration award in favor of respondent, Hereford Insurance Company, dismissing petitioner’s claim for intercompany reimbursement of no-fault benefits that petitioner had paid to its insured as a result of a motor vehicle accident. Respondent filed a cross petition to confirm the award.

Petitioner’s exhibits, attached to its papers in support of its petition, included a police report, which set forth the license number for each driver, the plate number and the state of registration for each vehicle, and the name of the driver of the second vehicle, Hector Moran. After paying no-fault benefits for claims ranging from December 19, 2012 through July 2015, petitioner commenced an action against Moran on December 22, 2015 seeking reimbursement of [*2]the no-fault benefits it had paid and asserted therein that Moran was uninsured. Moran defaulted. On November 28, 2017, Moran moved to vacate the default, asserting that he had insurance coverage. On January 19, 2018, respondent sent petitioner an email admitting that it had insurance coverage for Moran for the date of loss and requesting that petitioner withdraw its lawsuit against Moran. On January 21, 2018, petitioner filed an intercompany reimbursement notification and, on February 6, 2018, it commenced mandatory arbitration against respondent and discontinued its action against Moran.

Following an arbitration hearing on April 5, 2018, the arbitration panel ruled in favor of respondent, on the ground that most of petitioner’s claims were untimely. The arbitration panel denied the claim for services rendered in July 2015 on the ground that petitioner had failed to properly document that payment. Petitioner appeals from a Civil Court order entered February 15, 2019 denying petitioner’s petition to vacate the arbitration award and granting respondent’s cross petition to confirm the arbitration award, arguing that the statute of limitations was tolled but conceding that the dismissal of the July 2015 claim by the arbitration panel was proper.

“While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the one at issue in this case, must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious” (Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of NY, 144 AD3d 1160, 1160-1161 [2016] [internal quotation marks omitted]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982 [2018]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2015], quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Petitioner’s papers in support of its petition to vacate the arbitration award show that petitioner had in its possession a document dated December 3, 2015 titled “Registration Record Expansion,” a printout containing, among other things, Moran’s insurance policy number. The arbitrators could have formed a “reasonable hypothesis” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46) that this document indicates that, prior to filing its action against Moran, petitioner knew, or should have known, that Moran was insured.

Petitioner contends that, by filing its action against Moran, the three-year statute of limitations (see Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d 214) on its claims against respondent were tolled, even though respondent had not been served or named in that action. Matter of Brua Cab Corp. v Royal Indem. Co. (275 AD2d 778 [2000]) and Matter of Brinks, Inc. v Commercial Union Ins. Co. (217 AD2d 620 [1995]), cited by petitioner, are inapplicable, as the subsequent arbitration cannot be related back to an action filed against a different party.

The arbitrators’ determination that petitioner was not entitled to reimbursement for the benefits it had paid was not arbitrary or capricious. There is ample support in the record for the arbitrators’ finding that the statute of limitations had expired prior to petitioner’s commencement of its arbitration against respondent. “[E]ven assuming that the arbitrator might have misapplied applicable law . . . the arbitrator[s’] award was . . . supported by a ‘reasonable hypothesis’ and was not contrary to what could fairly be described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], quoting Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d at 224).

Accordingly, the order is affirmed.

We note that a proceeding to vacate or confirm an arbitration award is a special proceeding brought pursuant to CPLR article 4, and must terminate in a judgment rather than an order (see CPLR 411).

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

Decision Date: October 30, 2020

Law Offices of Buratti, Rothenberg & Burns (Bryan Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 1, 2019. The judgment, entered pursuant to an order of that court entered November 21, 2018 granting plaintiff’s motion for summary judgment, denying a cross motion made by defendant on August 25, 2011 for summary judgment dismissing the complaint, and rejecting a “cross” motion made by defendant on July 27, 2016, awarded plaintiff the principal sum of $1,670.32.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 21, 2018 is vacated, plaintiff’s motion for summary judgment is denied and the “cross” motion made by defendant on July 27, 2016 for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The parties’ attorneys subsequently entered into a stipulation setting forth a motion schedule, which adjourned the return date of the motion to December 22, 2011 and provided, among other things, that all opposition papers and cross motions must be served on or before September 22, 2011. On August 25, 2011, in accordance with the foregoing schedule, defendant 21st Century served a cross motion for summary judgment dismissing the [*2]complaint, arguing that it had timely denied the claims on the ground of material misrepresentation in the procurement of the insurance policy. Plaintiff opposed defendant’s cross motion in the Civil Court.

Before the Civil Court ruled on the motion and cross motion, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau County, and plaintiff herein appeared in that action. On December 19, 2011, the Supreme Court signed an order to show cause, which, among other things, temporarily stayed pending and future lawsuits by the instant provider and assignor, among others. By order entered May 29, 2012, the Supreme Court continued the stay pending the determination of the declaratory judgment action. By order entered May 6, 2015, the Supreme Court granted 21st Century’s motion for summary judgment. A judgment entered February 4, 2016 in the Supreme Court declared that 21st Century has no duty to provide coverage for specified collisions, including the incident herein, or for any claim for no-fault benefits arising out of those collisions. The judgment and orders with notices of their entry were served on the provider’s attorneys.

On July 22, 2016, based upon the declaratory judgment, defendant served what it denominated as a “cross” motion, with a return date of November 1, 2016, seeking an order in the Civil Court denying plaintiff’s motion for summary judgment, granting defendant’s summary judgment motion dismissing the complaint, granting defendant leave to amend its answer to include the affirmative defenses of collateral estoppel and res judicata and deeming the amended answer served. By order entered November 21, 2018, the Civil Court granted plaintiff’s motion and denied defendant’s August 25, 2011 cross motion on the ground that defendant’s answer had not asserted the affirmative defenses of collateral estoppel and res judicata, and found that the action had been “erroneously stayed.” The Civil Court further stated that it rejected defendant’s “additional cross motion,” served on July 27, 2016, as untimely under the parties’ motion schedule and “improper in violation of the one motion rule.” Defendant appeals from a judgment entered February 1, 2019 pursuant to the November 21, 2018 order, awarding plaintiff the principal sum of $1,670.32.

Contrary to the determination of the Civil Court, defendant’s failure to raise the affirmative defenses of collateral estoppel and res judicata in its answer was understandable and excusable since the declaratory judgment action had not been filed in the Supreme Court at the time defendant answered the instant complaint. Similarly, the order and judgment in the declaratory judgment action were not rendered until after defendant had cross-moved for summary judgment on August 25, 2011. Thus, as defendant argues, it had no reason to raise those affirmative defenses in the answer (see Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Whether defendant’s July 27, 2016 papers be deemed a motion with a return date of November 1, 2016 or a “cross” motion, in either case, its July 27, 2016 papers served as a vehicle to introduce the Supreme Court’s orders and the declaratory judgment entered in favor of 21st Century, of which this court takes judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate [*3]Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]). “While it is true that multiple motions for summary judgment in the same action . . . are looked upon with disfavor, more than one motion is permissible where[, as here,] the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion” (Inter-Power of NY v Niagara Mohawk Power Corp., 259 AD2d 932, 933 [1999]). Consequently, under the particular circumstances presented herein, the Civil Court, for judicial economy, should not have rejected defendant’s 2016 “cross” motion and should have taken judicial notice of the declaratory judgment. In light of the declaratory judgment, defendant’s 2016 “cross” motion should have been granted under the doctrine of res judicata, as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the Supreme Court’s judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment entered February 1, 2019 is reversed, the order entered November 21, 2018 is vacated, plaintiff’s motion for summary judgment is denied and the “cross” motion made by defendant on July 27, 2016 for summary judgment dismissing the complaint is granted.

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

Decision Date: October 30, 2020

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant-respondent. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent-appellant (no brief filed).

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 19, 2018. The order, insofar as appealed from by defendant, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely. The order, insofar as cross-appealed from by plaintiff, made implicit CPLR 3212 (g) findings in defendant’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant [*2]moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court entered November 19, 2018 as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely. Plaintiff cross-appeals from so much of the Civil Court’s order as, upon denying the aforementioned branches of defendant’s motion, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether defendant’s attorney was present at the scheduled EUOs. In support of its cross appeal, plaintiff argues that the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant should be vacated as an issue of fact exists because defendant failed to establish that it possessed objective reasons for requesting the EUOs.

Contrary to the determination of the Civil Court, the proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant’s attorney was present at the time for which the EUOs were scheduled to be held, and that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, with respect to plaintiff’s cross appeal, “as this court has repeatedly stated, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment” (Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). In opposition to the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely, plaintiff failed to demonstrate the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely are granted.

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

Decided on October 30, 2020

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 30, 2020

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C. (Selina Chin and David M. Gottlieb of counsel) for appellant.

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel) for respondent.

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

In this action by a corporate provider to recover assigned first-party no-fault benefits for services rendered to plaintiff’s assignor in 2009, defendant moved for, in effect, summary judgment dismissing the complaint. Defendant argued that plaintiff professional corporation could not enforce its claims because its sole shareholder had been legally disqualified from rendering professional services upon the revocation of his chiropractic license on June 28, 2010. The Civil Court granted defendant’s motion.

Initially, it is noted that defendant’s motion to dismiss the complaint pursuant to CPLR 3211 was made after issue had been joined. Generally, such a motion must be made “before service of the responsive pleading is required” (CPLR 3211 [e]), although “[w]hether or not issue [*2]has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While it is uncontested that the Civil Court did not notify the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable here, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). All the relevant facts are undisputed. Consequently, as the sole issue was the application of the Business Corporation Law, it was proper for the Civil Court to, in effect, treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).

Pursuant to Business Corporation Law §§ 1509 and 1510, when professionals lose their license, they are required to sever{**70 Misc 3d at 28} their ties with the professional service corporation. If the professional does not sever those ties, section 1509 grants the professional service corporation the authority to force the professional to do so, and failure to enforce this requirement constitutes a ground for forfeiture of the professional service corporation’s certificate of incorporation and its dissolution. Section 1510, among other things, directs the professional service corporation to repurchase the professional’s shares within six months of his disqualification. None of these requirements is self-executing.

Here, the professional has not complied with section 1509 and the professional service corporation has not repurchased his shares pursuant to section 1510, so the professional remains the corporation’s sole shareholder. No one has moved for forfeiture of plaintiff’s certificate of incorporation or its dissolution. Despite revocation of its shareholder’s professional license, plaintiff continued to exist and is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignor prior to June 28, 2010 (see A.B. Med. Servs., PLLC v National Grange Mut. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50154[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

The case of Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co. (15 Misc 3d 9 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]) is distinguishable. In that case, the death of the doctor who was the sole officer, director and shareholder of a professional service corporation required the dismissal of its appeal because no one remained with authority to prosecute the action. Here, however, the sole shareholder is alive and continues to have authority to act for the professional corporation as “an administrator, whose role is to preserve the value of, and prevent loss to, the [professional service corporation]” (Eastern Star Acupuncture, P.C. v Allstate Ins. Co., 36 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), rather than as a member of the profession from which he has been barred.

Section 1510 directs plaintiff to take actions that it concededly failed to do. It does not hold, however, that such a violation makes otherwise valid contracts unenforceable or that the{**70 Misc 3d at 29} corporation’s debtor should be entitled to withhold payment for services legally rendered. Consequently, there is no bar to plaintiff’s pursuit of reimbursement for services rendered to its assignor.

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

Aliotta, P.J., Siegal and Toussaint, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, October 29, 2020

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.

The Law Offices of Perry & Frankson, North New Hyde Park (Erin L. McFadzen of counsel), for defendant.

In this no-fault action seeking reimbursement for medical services, plaintiff medical provider moves, inter alia, for an order granting summary judgment pursuant to CPLR 3212. Defendant insurer also moves, inter alia, for summary judgment pursuant to CPLR 3212.

The court finds that plaintiff established its prima facie showing of entitlement to summary judgment. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, in support of its motion, plaintiff submits the affidavit of Sean B. Diamond, D.C., the owner of Bronx Chiropractic Rehabilitation, P.C., in which he establishes that the claim forms had been timely and properly mailed to defendant (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2013]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d [*2]320 [1986]).

The court finds that defendant failed to raise a triable issue of fact in opposition to plaintiff’s motion and to establish their own entitlement to summary judgment pursuant to CPLR 3212. Defendant asserts that they properly denied plaintiff’s claims for failure to provide a requested verification within 120 days of the initial request and that plaintiff’s case must be dismissed as premature. However, defendant fails to submit adequate evidence in support of their requests for verification. Defendant relies on attached copies of the verification request letters as well as the affidavit of their litigation representative, Joseph M. Andre, who establishes mailing of the letters. In the verification request letters at issue, defendant states that they requested that the assignor provide a recorded statement via a scheduled phone call. Defendant claims that the assignor failed to respond to the calls they scheduled in all three verification request letters.^[FN*] Accordingly, defendant asserts that dismissal {**70 Misc 3d at 363}of plaintiff’s case is appropriate based on outstanding verification.

However, based on the language contained in the verification request letters, defendant was required to call the assignor on a certain date, at a certain time, to a certain telephone number in order to obtain the requested information: “In order to determine your eligibility for benefits, all benefits remain delayed pending your cooperation with our request for a recorded statement. You will be contacted at the number below to provide a statement on the date and time indicated.” (Emphasis added.)

Although defendant established that the verification requests were mailed, they failed to establish that a representative placed the phone call which they claim the assignor failed to answer on each of the scheduled dates. As a result, the verification requests are incomplete.

In a similar Appellate Term case, Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., the defendant insurer also denied the plaintiff’s claim based on outstanding verification (13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The Appellate Term found that the defendant insurer failed to submit adequate proof to support their claim of mailing the verification requests. As a result of this evidentiary deficiency, the Appellate Term found that the defendant’s time to pay or deny the claim was not tolled and their denials were untimely.

Although there is no case that addresses the specific issue herein, the reasoning in Dilon is applicable to the issue of inadequate proof of verification. Here, while defendant establishes the mailing of the verification requests, they do not establish the substantive portion of the verification inquiry. Thus, the incomplete verification requests did not toll defendant’s time to pay or deny the claim and defendant is “precluded from raising most defenses as a result of its untimely denial” (Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U], *2). Accordingly, defendant both fails to meet their own prima facie burden for summary judgment and raise an issue of fact in opposition to plaintiff’s motion based on its outstanding verification argument (see Zuckerman v City of New York, 49 NY2d 557 [1980];{**70 Misc 3d at 364} St. Anna Wellcare, P.C. v GEICO Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50948[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Based on the foregoing, plaintiff’s motion for summary judgment pursuant to CPLR 3212 is granted. Defendant’s motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiff’s case as premature is denied.

Footnotes

Footnote *:In the first verification letter, the recorded phone statement was scheduled to take place on May 16, 2016, at 10:00 a.m. On May 17, 2016, defendant mailed a second verification request letter scheduling a recorded phone statement to take place on May 30, 2016, at 10:00 a.m. On May 31, 2016, defendant mailed a third verification request scheduling a recorded phone statement to take place at 10:00 a.m. on June 10, 2016.

[*1]

Goldberg, Miller & Rubin, P.C., New York (Eli Shmulik of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about December 10, 2019, which denied as premature plaintiff’s motion for summary judgment declaring that it is not obligated to reimburse defendants-respondents for no-fault claims submitted in connection with a motor vehicle accident, unanimously affirmed, without costs.

Plaintiff no-fault insurer failed to provide the injured claimant’s assignees with the “specific objective justification” for its request that the injured claimant submit to an examination under oath (EUO) to establish proof of claim (11 NYCRR 65-3.5 [e]; see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As the criteria by which plaintiff determined that an EUO was required constitute facts unavailable to defendants for use in opposing plaintiff’s motion, the motion was premature (CPLR 3212 [f]). Moreover, as the court noted, plaintiff moved for summary judgment before any depositions had been conducted (see e.g. Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Renwick, J.P., Gesmer, Kern, Singh, JJ.

[*1]

Civil Court of the City of New York, Kings County, October 20, 2020

APPEARANCES OF COUNSEL

Erin O’Neil and Melanie J. Rosen, Garden City, for defendant.

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.

In this action by plaintiff medical provider to recover no-fault benefits, defendant insurer moves for dismissal of the complaint on grounds that the plaintiff’s claims are barred by a declaratory judgment in Supreme Court. Plaintiff opposes the motion and cross-moves for summary judgment.

Relying on the recently decided Quality Health Supply Corp. v Hertz Co. (68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [2020]), plaintiff argues that the Supreme Court declaratory judgment issued in Progressive Max Ins. Co. v Mykia Black (Sup Ct, Nassau County, Sept. 28, 2017, Parga, J., index No. 003809/16) does not apply to or otherwise bar this action under the doctrine of res judicata or collateral estoppel because the defendant herein is Progressive Insurance Company not Progressive Max Insurance Company. In the Supreme Court action, which named Essie Bryant (assignor herein), Mykia E. Black (the insured) and Bronx Chiropractic Rehabilitation, P.C. among the defendants, the Honorable Anthony Parga declared the policy null and void as to the December 2, 2015 incident.

In Quality Health Supply Corp. v Hertz Co., a declaratory judgment action brought on by Hertz Vehicles, LLC against Quality Health and its assignor was granted on default. Thereafter, Hertz Co. sought to amend the caption of the civil court case to name Hertz Vehicles, LLC as the proper party and to dismiss the action against it pursuant to the declaratory judgment. The Appellate Term found that the defendant had failed to submit evidence that plaintiff had sued the wrong party and therefor it couldn’t show that there had been a final adjudication of the civil court claims on the merits by the declaratory judgment.

In this case, however, defendant proffered the affidavit of Christina Plante, a Senior Medical Claims Representative{**69 Misc 3d at 1073} employed by Progressive Casualty Insurance Company, who averred that the declaration page lists Progressive Max Insurance Company as the insuring entity for Mykia E. Black under her policy number 907911812. Defendant also attached to its motion papers a certified copy of the declaration page which lists Progressive Max as the insurance company underwriting the policy at issue. Thus, the court finds that the proper insurer has always been Progressive Max Insurance Company, not Progressive Insurance Company as plaintiff erroneously named herein. Accordingly, plaintiff’s action is barred by the doctrine of res judicata. The declaratory judgment issued by the Honorable Anthony Parga collaterally estops this civil court action.

While it would have been better practice for defendant herein to have also moved to amend the caption to name Progressive Max the proper party, the failure to do so does not affect a substantial right of the plaintiff and it is sua sponte granted herein. It is noted that the declaration page of the policy at issue gave notice to the plaintiff that Progressive Max was the entity insuring the driver Mykia E. Black. Plaintiff’s mistake in not naming Progressive Max should not be to the detriment of defendant.

The caption shall be amended as follows:

Accordingly, the caption is amended to name Progressive Max Insurance Company as the correct defendant and the action is dismissed with prejudice pursuant to the declaratory judgment issued by the Honorable Anthony Parga as noted herein.

[*1]

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

The Law Office of Melissa Betancourt, P.C., Brooklyn (Jamin Koo of counsel), for Longevity Medical Supply Inc., respondent.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for Jamaica Wellness Medical, P.C., and LVOV Acupuncture, P.C., respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about September 30, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to renew its motion for summary judgment declaring in its favor against defendants Longevity Medical Supply, Inc., Jamaica Wellness Medical, P.C., United Wellness Chiropractic, P.C., and Lvov Acupuncture, P.C., unanimously reversed, on the law, without costs, the motion for renewal granted and, upon renewal, the motion for summary judgment granted. The Clerk is directed to enter judgment declaring that plaintiff owes no coverage to said defendants.

Plaintiff provided a policy of insurance to VIP Limousine & Tuxedo, Inc. (VIP) that included a no-fault endorsement to an insured or eligible person for necessary expenses resulting from a motor vehicle accident. In April 2014, one of VIP’s limousines was hit in the rear by another car. Thereafter, the driver and passengers of the limousine (the individual defendants) filed claims as eligible persons under the policy issued by plaintiff, and later assigned their rights to the no-fault benefits to various medical providers (medical provider defendants).

Plaintiff moved for summary judgment, asserting that the accident was staged and therefore, none of the individual defendants or the medical provider defendants were entitled to benefits under the policy. Supreme Court denied the motion, finding that plaintiff failed to demonstrate as a matter of law that the accident was fraudulently or intentionally procured.

Plaintiff moved to renew its prior motion for summary judgment. In support of its motion to renew, plaintiff submitted additional evidence that the accident was staged in the form of a videotape confession by one of the passengers, which it had procured, after extensive motion practice, from the Police Department, Department of Financial Services, Insurance Fraud Bureau (DFS), and Kings County District Attorney’s Office. Supreme Court denied renewal on the grounds that plaintiff failed to offer any reasonable explanation as to why the videotape could not have been attached to its prior motion, and that the videotape was not properly authenticated for purposes of summary judgment.

Plaintiff appealed. We now reverse finding that renewal should have been granted in the interests of justice and substantive fairness (see Ross v Lewis, 181 AD3d 423, 424 [1st Dept 2020]; Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [1st Dept 2010]; Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]). “Although it is true that a motion to renew should generally be based upon newly-discovered facts, this rule is not inflexible, and the court has discretion to grant renewal in the interest of justice even upon facts that were known to the movant at the time the original motion was made” (Kaszar v Cho, 160 AD3d 501, 502 [1st Dept 2018]).

Here, plaintiff demonstrated that the additional evidence it submitted in support of its motion to renew would change the prior determination and that it was required to engage in extensive motion practice to obtain the material. Plaintiff also established that it was unaware of the nature and extent of the information held by those agencies before then (CPLR 2221 [e] [2], [3]). The material, which included statements by the passengers who assigned their claims to defendants, proves that the motor vehicle accident was staged (see Matter of Global Liberty Ins. Co. of N.Y. v Eveillard, 171 AD3d 749, 750-751 [2d Dept 2019]; CPLR 2221 [e]).

Contrary to defendants’ contentions, the videotape of the confession of one of the defendants who participated in the scheme and the statements others provided to the police and DFS are admissible as party admissions (see People v Soto, 26 NY3d 455, 461 [2015]; People v Caban, 5 NY3d 143, 150-151 n [2005]). Plaintiff demonstrated the authenticity of this material by proof of the complete chain of custody (see People v Price, 29 NY3d 472, 481-482 [2017]).

Defendants failed to submit any evidence controverting plaintiff’s proof that the accident was staged. Concur—Kapnick, J.P., Singh, Kennedy, Mendez, JJ.