Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings in favor of plaintiff.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action commenced by a provider on January 23, 2018 to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that the statute of limitations had expired, as the claims “became overdue 30 days from the date of receipt of the bills by” defendant. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant appeals from so much of an order of the Civil Court (Odessa Kennedy, J.) entered June 20, 2019 as denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings limiting the issues for trial to “defendant’s mailing of the denials and the defenses raised in those [*2]denials based on IME cut off and statute of limitation[s].” On appeal, defendant argues that the claims became overdue upon plaintiff’s receipt of the denial of claim forms mailed by defendant.

A review of the record (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]) reveals that defendant has admitted receiving the claim forms underlying the first and second causes of action on November 28, 2011. Since the instant action was commenced on January 23, 2018, plaintiff’s first and second causes of action were commenced after the statute of limitations had elapsed (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

However, contrary to defendant’s contention, the record does not establish, as a matter of law, that the third, fourth, fifth, and sixth causes of action were commenced after the statute of limitations had elapsed. Plaintiff mailed the claim forms underlying the third, fourth and fifth causes of action on December 28, 2011 and the claim forms underlying the sixth cause of action on January 22, 2012. If defendant received the earliest of these on January 3, 2012, as it claimed in its motion, then these causes of action were timely commenced on January 23, 2018 in the absence of proof that defendant issued denials that resulted in earlier accrual dates (see New [*3]Millennium Med. Imaging, P.C., 76 Misc 3d at 35). Thus, defendant did not establish on this record that these causes of action were commenced after the statute of limitations had elapsed.

Finally, defendant fails to articulate a sufficient basis to strike the Civil Court’s findings, in effect, pursuant to CPLR 3212 (g), limiting the issues for trial (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Decision Date: August 30, 2024

Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings in favor of plaintiff.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action commenced by a provider on January 23, 2018 to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that the statute of limitations had expired, as the claims “became overdue 30 days from the date of receipt of the bills by” defendant. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant appeals from so much of an order of the Civil Court (Odessa Kennedy, J.) entered June 20, 2019 as denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings limiting the issues for trial to “defendant’s mailing of the denials and the defenses raised in those [*2]denials based on IME cut off and statute of limitation[s].” On appeal, defendant argues that the claims became overdue upon plaintiff’s receipt of the denial of claim forms mailed by defendant.

The date by which an action must be commenced is determined by computing “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). A defendant asserting a statute of limitations defense must establish that the plaintiff commenced the action after the expiration of the statute of limitations (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). A no-fault cause of action against an insurance company must be commenced within six years after the cause of action accrues (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), and the cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008]; Mandarino, 37 AD3d 775; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Where an insurance company fails to pay or deny a no-fault claim, “[a] first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim” (DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), absent proof of any tolling of the 30-day claim determination period. However, “where a no-fault claimant receives a denial of claim form prior to the expiration of the claim determination period, the claimant’s right to recover upon that claim accrues upon its receipt of the denial” (New Millennium Med. Imaging, P.C. v GEICO Ins. Co., 76 Misc 3d 31, 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] [emphasis omitted]). While defendant’s claims representative alleged, in an affidavit that defendant submitted in support of its motion to dismiss the complaint, that the claims at issue were denied, the affidavit failed to establish when the denials were received by, or even mailed to, plaintiff (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), and there have been no allegations of any tolling. Thus, on the record before us, there is no basis to find that the causes of action accrued any earlier or later than 30 days after defendant received these claims (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

A review of the record (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]) reveals that defendant has admitted receiving the claim forms underlying the first and second causes of action on November 28, 2011. Since the instant action was commenced on January 23, 2018, plaintiff’s first and second causes of action were commenced after the statute of limitations had elapsed (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

However, contrary to defendant’s contention, the record does not establish, as a matter of law, that the third, fourth, fifth, and sixth causes of action were commenced after the statute of limitations had elapsed. Plaintiff mailed the claim forms underlying the third, fourth and fifth causes of action on December 28, 2011 and the claim forms underlying the sixth cause of action on January 22, 2012. If defendant received the earliest of these on January 3, 2012, as it claimed in its motion, then these causes of action were timely commenced on January 23, 2018 in the absence of proof that defendant issued denials that resulted in earlier accrual dates (see New [*3]Millennium Med. Imaging, P.C., 76 Misc 3d at 35). Thus, defendant did not establish on this record that these causes of action were commenced after the statute of limitations had elapsed.

Finally, defendant fails to articulate a sufficient basis to strike the Civil Court’s findings, in effect, pursuant to CPLR 3212 (g), limiting the issues for trial (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Michael J. Giordano of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Derefim B. Neckles, J.), dated June 14, 2023, as amended by an order of that court dated January 12, 2024. The order, as amended, denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, as amended, is modified by providing that defendant’s cross-motion for summary judgment dismissing the complaint is denied; as so modified, the order, as amended, is affirmed, without costs.

In November 2018, plaintiff John A. Nasrinpay commenced this action against defendant “National General Insurance Company” to recover assigned first-party no-fault benefits for services he rendered to his assignor, who was allegedly injured in an automobile accident on September 28, 2017. In September 2018, “National General Insurance Online, Inc.” and New South Insurance Company brought a declaratory judgment action in the Supreme Court, Nassau County, against John A. Nasrinpay and his assignor herein, Pouchon Cange, among other parties, pertaining to the September 28, 2017 accident and then moved for a default judgment against John A. Nasrinpay and Cange, among others, when they failed to answer or appear. Insofar as is relevant to this appeal, Nasrinpay opposed the motion and Cange did not. In a default judgment [*2]entered November 13, 2019 against Cange, among others, and a separate default judgment entered November 21, 2019 against Nasrinpay, among others, the Supreme Court declared that the September 28, 2017 incident was a “Staged Accident” and that “National General Insurance Online, Inc.” and New South Insurance Company were not obligated to pay claims for reimbursement submitted by Cange and Nasrinpay, respectively, arising from that incident.

Subsequently, Nasrinpay moved in the Civil Court for summary judgment, asserting that he had provided medically necessary services to his assignor, that the relevant claim form was mailed to defendant “National General Insurance Company,” and that defendant had failed to pay or deny the claim. Defendant cross-moved for summary judgment dismissing the complaint on the ground of res judicata or collateral estoppel, based on the aforementioned November 13 and 21, 2019 Supreme Court default declaratory judgments. Nasrinpay appeals from an order of the Civil Court dated June 14, 2023, as amended by an order dated January 12, 2024, denying his motion for summary judgment and granting defendant’s cross-motion for summary judgment dismissing the complaint based on the default declaratory judgments issued in the Supreme Court action.

The doctrine of res judicata generally requires a final adjudication of a claim on the merits and precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Moreover, collateral estoppel precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While “[a]n issue is not actually litigated if, for example, there has been a default” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), collateral estoppel may be applied to default judgments where the party against whom preclusion is sought appears in the prior action (see Miller v Falco, 170 AD3d 707 [2019]).

It was National General Insurance Online, Inc., not defendant herein, that obtained the default declaratory judgment relied upon by defendant for its preclusion argument and, therefore, there is no res judicata effect based on National General Insurance Online, Inc.’s default declaratory judgment against Nasrinpay. Indeed, there has been no attempt to demonstrate that defendant is, in fact, National General Insurance Online, Inc., or even that National General Insurance Online, Inc., and not defendant, is “the proper insurer,” requiring the dismissal of the complaint on that basis (see Quality Health Supply Corp., 2020 NY Slip Op 50996[U]). Moreover, as Nasrinpay did not appear in the declaratory judgment action, he did not have a full [*3]and fair opportunity to litigate whether the September 28, 2017 incident was a staged accident and, therefore, there is no collateral estoppel effect against him based on the default declaratory judgment (see Kaufman, 65 NY2d at 456-457). Thus, the Civil Court should have denied defendant’s cross-motion.

Nasrinpay’s motion for summary judgment was likewise properly denied, as Nasrinpay did not submit any evidence of an address for defendant, and thus failed to establish that the prescribed statutory claim form had been received by defendant (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). In any event, there is a triable issue of fact as to whether defendant was an insurer for this accident.

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

BUGGS, J.P., MUNDY and HOM, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 20, 2023. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross-motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel defendant to comply with its discovery demands. Thereafter, defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for three duly scheduled examinations under oath (EUOs) on May 17, 2019, June 17, 2019, and June 20, 2019, and plaintiff “cross-moved” for summary judgment. The Civil Court denied plaintiff’s motion to compel discovery as moot, and upon denying both parties’ “cross-motions” for summary judgment, made CPLR 3212 (g) findings in both parties’ favor, including that defendant had established that plaintiff’s assignor failed to appear for an EUO on May 17, 2019, that the EUO scheduled for June 17, 2019 was mutually rescheduled, and that the claim was timely denied. The Civil Court also held that there were triable issues of fact regarding “whether [d]efendant’s third [EUO] notice under the circumstances was reasonable and [*2]whether [d]efendant properly notified the eligible injured person of the location of the third scheduled EUO appointment” to be held on June 20, 2019.

Defendant is entitled to summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear at duly scheduled EUOs on May 17, 2019 and June 20, 2019. The record indicates that, prior to the time plaintiff’s assignor was supposed to appear, during a phone call between plaintiff’s assignor and defendant’s counsel’s office on June 17, 2019, the second EUO originally scheduled for June 17, 2019, was rescheduled, at plaintiff’s assignor’s request, to June 20, 2019. Defendant submitted prima facie evidence that plaintiff’s assignor was orally informed of the date, time, and location of the follow-up EUO scheduled for June 20, 2019 during the phone call on June 17, 2019, and plaintiff failed to submit an affidavit from someone with personal knowledge to rebut this evidence (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff’s assignor specifically requested that the second EUO be rescheduled to June 20, 2019, a mere three days later, this method of notice was sufficient (see 11 NYCRR 65-3.6 [b]). It is immaterial that plaintiff’s assignor may not have received written confirmation of the date, time, and location of the rescheduled EUO before June 20, 2019, since the no-fault regulations do not require notice of an EUO to be provided in writing (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). As it is undisputed that defendant timely scheduled EUOs of plaintiff’s assignor, that plaintiff’s assignor failed to appear at EUOs on May 17, 2019 and June 20, 2019, and that the claim was timely denied within 30 days of June 20, 2019, defendant’s cross-motion for summary judgment dismissing the complaint should have been granted (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross-motion for summary judgment dismissing the complaint is granted.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 20, 2023. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross-motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel defendant to comply with its discovery demands. Thereafter, defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for three duly scheduled examinations under oath (EUOs) on May 17, 2019, June 17, 2019, and June 20, 2019, and plaintiff “cross-moved” for summary judgment. The Civil Court denied plaintiff’s motion to compel discovery as moot, and upon denying both parties’ “cross-motions” for summary judgment, made CPLR 3212 (g) findings in both parties’ favor, including that defendant had established that plaintiff’s assignor failed to appear for an EUO on May 17, 2019, that the EUO scheduled for June 17, 2019 was mutually rescheduled, and that the claim was timely denied. The Civil Court also held that there were triable issues of fact regarding “whether [d]efendant’s third [EUO] notice under the circumstances was reasonable and [*2]whether [d]efendant properly notified the eligible injured person of the location of the third scheduled EUO appointment” to be held on June 20, 2019.

Defendant is entitled to summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear at duly scheduled EUOs on May 17, 2019 and June 20, 2019. The record indicates that, prior to the time plaintiff’s assignor was supposed to appear, during a phone call between plaintiff’s assignor and defendant’s counsel’s office on June 17, 2019, the second EUO originally scheduled for June 17, 2019, was rescheduled, at plaintiff’s assignor’s request, to June 20, 2019. Defendant submitted prima facie evidence that plaintiff’s assignor was orally informed of the date, time, and location of the follow-up EUO scheduled for June 20, 2019 during the phone call on June 17, 2019, and plaintiff failed to submit an affidavit from someone with personal knowledge to rebut this evidence (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff’s assignor specifically requested that the second EUO be rescheduled to June 20, 2019, a mere three days later, this method of notice was sufficient (see 11 NYCRR 65-3.6 [b]). It is immaterial that plaintiff’s assignor may not have received written confirmation of the date, time, and location of the rescheduled EUO before June 20, 2019, since the no-fault regulations do not require notice of an EUO to be provided in writing (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). As it is undisputed that defendant timely scheduled EUOs of plaintiff’s assignor, that plaintiff’s assignor failed to appear at EUOs on May 17, 2019 and June 20, 2019, and that the claim was timely denied within 30 days of June 20, 2019, defendant’s cross-motion for summary judgment dismissing the complaint should have been granted (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross-motion for summary judgment dismissing the complaint is granted.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.

Upon reading Petitioner’s unopposed Petition to Vacate Arbitration Award (“Petition“), the Petition is decided as follows.

On August 2, 2019, Arbitrator Taylor awarded Respondent $3,129.75 in No-Fault benefits relating to an alleged motor vehicle accident on October 18, 2017. Master Arbitrator Godson upheld the award in a decision dated December 24, 2019. On February 11, 2020, Petitioner’s filed the Petition. Respondents have not opposed or otherwise appeared in this Petition.

Petitioner sought relief under CPLR 7511(b) which states that the grounds for vacating an arbitration decision are “(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection” [emphasis added].

The Petitioner asserted, having submitted a peer review by Dr. Polavarapu alleging that the disputed services provided by Respondent EXCELL CLINICAL LAB were medically unnecessary, that the “burden” was then on Respondents to establish medical necessity. Respondents allegedly failed to do so. Indeed, they did not offer any IME Report or peer review of their own. Petitioner asserted that Respondents’ “failure” to meet their “burden” meant that the Arbitrators’ decisions were not “final and definite”.

The Court disagrees. Petitioner’s outline of how the evidentiary burden shifts between Petitioner and Respondent properly describes the dynamics during a trial determining entitlement or a motion for summary judgment (see Citywide Social Work & Psychological Servs., PLLC v Allstate Ins. Co., 20 Misc 3d 1124[A], 1124A, 2008 NY Slip Op 51601[U], *1 [Sup Ct, Nassau County 2008]; Amaze Med. Supply, Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 128A, 2003 NY Slip Op 51701[U], *1 [App Term 2003]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 18 Misc 3d 1147[A], 1147A, 2008 NY Slip Op 50456[U], *1 [Civ Ct, Kings County 2008]). However, the same evidentiary standards do not apply to no-fault arbitrations (see Am. Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890, 891 [Sup Ct, Kings County 2023]). “When determining an issue of medical necessity, a No-Fault hearing arbitrator is not required to apply the well-settled case law holding that the health service provider must submit expert opinion evidence which meaningfully refers to and either discusses or rebuts the conclusions of the insurer’s expert witness” (Id.).

“Judicial review of arbitration awards is extremely limited” (Matter of O’Neill v GEICO Ins. Co., 162 AD3d 776, 777 [2d Dept 2018]). “Vacatur of an award pursuant to [CPLR 7511(b)(iii)] is warranted only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Id. [internal citations omitted]). Petitioner here did not allege a violation of strong public policy or that the award clearly exceeded a specifically enumerated limit. The Court does not find either Arbitrator’s reasoning to be irrational. Arbitrator Taylor’s decision indicated a “close examination” of the materials submitted by Petitioner and discussed her reasoning. In particular, she found that an MRI report showing “interstitial tear of the ACL and focal vertical tear medial meniscus . . . reasonably establish a basis to perform surgery to repair the tears of the ACL and medial meniscus” (Exhibit A, Petition). Master Arbitrator Godson concurred.

On the topic of finality: “Nothing in the award would lead the parties to a new controversy or litigation, the rights and obligations of the parties are clearly established, and the controversy between the parties is clearly resolved. Accordingly, the arbitrator’s award is sufficiently final and definite” (Geico Indem. Co. v. Ace USA Grp., 2022 NYLJ LEXIS 1101, *7).

Accordingly, it is

ORDERED that the Petition to Vacate Arbitration Award is DENIED in its entirety.

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

Plaintiff moves This Honorable Court by Notice of Motion to Amend Summons and Complaint and Add New Party pursuant to CPLR 305(c), CPLR 2001, and CPLR 3025(B) to remove Defendant Progressive Northern Insurance Company as outgoing defendant and to add [*2]Country Wide Insurance Company as incoming defendant, and for such other and further relief deemed just and proper.

Plaintiff medical provider UGP Acupuncture P.C. (hereinafter referred to as UGP) commenced this No-Fault action against Insurer Defendant Progressive Northern Insurance Company (hereinafter referred to as Progressive) for payment reimbursement for medical services rendered to alleged EIP-Assignor for injuries allegedly sustained as a result of a motor vehicle accident (hereinafter referred to as MVA) occurring on or about July 22, 2018. Summons and complaint filed with clerk of court on January 11, 2021. Defendant failed to serve Answer thus Plaintiff filed for Default Judgment on July 22, 2021, which was rejected by clerk of court on July 5, 2022. Thereafter, issue was joined on August 12, 2021, service of Defendant’s Answer, dated August 5, 2021, which was acknowledged as received by Plaintiff on August 16, 2021, and filed with clerk of court on or about October 14, 2021. The Parties executed Stipulation of Settlement and Discontinuance dated July 23, 2021 in which was contained: “The index number 700545/21 is preserved for Plaintiff to reserve the correct insurance carrier.” (NYSCEF document #4).

Thereabouts ten months after the execution of the Stipulation of Settlement and Discontinuance disposing the case, Plaintiff filed on May 28, 2022, the instant Motion to Amend to add new incoming Insurer Defendant Country Wide Insurance Company which was dated and served upon both outgoing No-Fault Insurer Defendant and purported incoming No-Fault Insurer Defendant on September 21, 2021, two months after the disposition of the case by the execution of the Stipulation of Settlement and Discontinuance. This instant motion to Amend was first on to be heard on June 30, 2022. On that date and continuing to the present, outgoing No-Fault Insurer Defendant did not file any responsive papers to the motion. After this first appearance on August 23, 2023, two years after the execution of the Stipulation of Settlement and Discontinuance disposing the case, it was uploaded to NYSCEF. The motion was adjourned to November 13, 2023, then to February 20, 2024. On February 20, 2024, This Court presided, upon which both Plaintiff and outgoing No-Fault Insurer Defendant did appear in which outgoing No-Fault Insurer Defendant asserted that it had no objection to the motion to amend, thereby in the routine matter of course, Interim Order was issued adjourning the motion to March 25, 2024 and ordering Plaintiff to mail the papers to incoming No-Fault Insurer Defendant with proof of its address within 20 days of the order. However, Plaintiff failed to state that incoming No-Fault Insurer Defendant had been previously served on September 21, 2021. More importantly, both Parties, more so particularly to the detriment of the outgoing No-Fault Insurer Defendant, failed to substantively convey to This Court’s attention the import of the August 31, 2023 NYSCEF filed Stipulation of Settlement which although unintended, was effectively nevertheless a de-facto and a de jure disposition of the case in its entirety. Having been adjourned from March 25, 2024 to May 22, 2024 then May 24, 2024, on which oral arguments were heard and decision was reserved.

Over the past year, This Court has presided over an exponentially rising trend of no-fault motions to amend to replace an incorrect outgoing No-Fault Insurer Defendant with an alleged purported incoming No-Fault Insurer Defendant, with cases having been filed many years [*3]previously. Many of these motions to amend at first blush ab initio evidenced various defenses available to the purported incoming No-Fault Insurer Defendant, i.e. statute of limitations as well as violations of the stringent no-fault insurance law timelines, inter alia. Nevertheless, This Court deemed it an unauthorized abuse of the exercise of judicial discretion to sua sponte address potential defenses of the incoming No-Fault Insurer Defendant. Most obviously, an outgoing No-Fault Insurer Defendant is incentivized and has a vested interest to either stipulate to such amendment, not oppose, or abstain for the amendment to be granted by the Court, which would relieve the outgoing No-Fault Insurer Defendant from further litigation of the case and the attendant costs thereof. In the interest of the administration of justice and judicial efficiency and economy, notwithstanding the No-Fault Plaintiff’s Bar objections, This Court devised an Interim Order, directing the plaintiffs to give notice by mailing a copy of the motion to amend to the purported incoming No-Fault Insurer Defendant within 20 days and motion adjourned to a date certain for oral argument and ultimate decision allowing incoming No-Fault Insurer Defendant to have an opportunity to be heard and present any of its dispositive defenses in opposition to the motion to amend.

At some point after This Court instituted the interim order procedure, plaintiffs and outgoing defendants of their own volition in attempt to circumvent court intervention would enter into stipulations to amend inuring to both their benefits in an attempt to bypass the court’s interim order, which This Court rejected. Similarly, albeit more so improperly, in this instant matter, Plaintiff and outgoing Defendant herein attempted to entirely bypass judicial intervention altogether and issue order and directive directly to the clerk of court. Here, Plaintiff filed motion to amend with clerk of court on May 28, 2022, although served September 21, 2021, upon outgoing No-Fault Insurer Defendant and purported incoming No-Fault Insurer Defendant Countrywide Insurance Company, of which parties failed to advise This Court at the February 20, 2024 appearance, which would have obviated the issuance of the Interim Order. It is a rarity for This Court to encounter the proposed incoming No-Fault Insurer Defendant having been served or given notice of the underlying motion to amend. On the contrary, plaintiffs have quite zealously argued against interim orders for providing notice to the purported incoming No-Fault Insurer Defendants since not yet a party and having no standing until the amendment is judicially granted. It is this lack of notice to the incoming No-Fault Insurer Defendant which propelled This Court to devise interim orders.

Here, since the parties failed to alert This Court that incoming No-Fault Insurer Defendant had been previously served thereby already being noticed, thus unnecessarily the interim order was issued accordingly as a matter of course for notice to incoming No-Fault Insurer Defendant Countrywide Insurance Company within 20 days and adjourned for oral argument, which occurred on May 24, 2024. It was at this time that Defendant first argued that it was no longer part of the case since it had previously settled with Plaintiff, notwithstanding that it full-well knew that it was not the proper Defendant-Insurer. In the interest of dispositive finality and reduction of litigation costs, nevertheless it settled for nuisance value for attorney fees and filing fee by Stipulation of Settlement and Discontinuance, fully executed, dated July 23, 2021. This Stipulation of Settlement and Discontinuance was not so ordered by any jurist. Therefore, this agreement was solely between the parties, without nary act of judicial intervention. Plaintiff woefully errs in its argument that the clause contained within the Stipulation of Settlement and Discontinuance, “1. The index number 700545/21 is preserved for Plaintiff to reserve the correct insurance carrier.” (NYSCEF document #4), binds the court to [*4]do what it says to do- namely to preserve the index number merely based on the agreement of litigating parties of their own volition without judicial intervention. Herein, based upon Plaintiff’s very argument that interim orders are procedurally improper since incoming No-Fault Insurer Defendant has no standing until amendment judicially granted, likewise, in the same vein, by virtue of settling and discontinuing with the sole party defendant with standing, the index number is thereby rendered extinguished and disposed.^[FN1] As herein, an index number without any party defendant is a rudderless nullity that cannot be preserved by mere contract by the party litigants in the court’s administration of justice. Certainly, party litigants may contractually mutually agree by stipulation to all manners and variations of relief, however, the relief may not be sanctioned by, nor be binding upon, nor be abided by the Court. The marking of this index number as disposed and the acceptance of the filing of the motion to amend as being filed post-disposition are merely ministerial acts of the clerk of court which is devoid of discretion. The discretion herein lies with the court’s judicial intervention to rectify, nullify and invalidate the improper language Plaintiff seeks to enforce upon the clerk of court herein. This Court rejects Plaintiff’s argument and finds that the Stipulation of Settlement and Discontinuance dated July 23, 2021 renders the index number entirely disposed ^[FN2] .

Plaintiff’s further argument that despite the foregoing, This Court lacks the judicial discretion to sua sponte vacate its Interim Order dated February 20, 2024, is rejected. The court is vested with judicial discretion to be exercised scrupulously and providently. Although, such exercise is not unfettered and is limited particularly in granting dispositive relief sua sponte ^[FN3] . Most recently but a mere few months ago, it has been upheld : “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” (Hersko v Hersko, 224 AD3d 810, 812-813 [2d Dept 2024] citing Newburgh Commercial Dev. Corp. v Cappelletti, 216 AD3d 978, 981 [2d Dept 2023] and Robinson v Big City Yonkers, Inc., 179 AD3d 961, 963 [2d Dept 2020]). Further, but a mere month ago, it was held:

“Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment”

(Am. Home Mtge. Servicing, Inc. v Kaplan, — AD3d —, 2024 NY Slip Op 02294 [2024] quoting Adams v Fellingham, 52 AD3d 443, 444 [2d Dept 2008] citing US Bank N.A. v Ashley, 202 AD3d 1142, 1144 [2d Dept 2022]; United Airconditioning Corp. v Axis Piping, 194 AD3d 981, 984-985 [2d Dept 2021]; JSO Assoc., Inc. v Price, 104 AD3d 737, 738 [2d Dept 2013]).

“[A] substantive change to a prior order or judgment . . . cannot be made under CPLR 5019(a), even with notice to the parties and an opportunity to be heard. Trial courts have no revisory or appellate authority to correct by amendments any errors of substance in prior orders or judgments”

Unbeknownst to This Court, it was based upon erroneous facts that the Interim Order was granted on an entirely disposed index number and that the incoming Defendant Countrywide Insurance Company had previously been provided notice by service on September 21, 2021. It was incumbent on the parties to have advised This Court of these two facts, which they failed to so do. Thus, the Interim Order should not have been issued ab initio and it is a provident exercise of judicial discretion in the justiciable administration of justice that it be vacated sua sponte. This is not dispositive judicial relief here, since this index number was previously disposed prior to the May 28, 2022 filing of the motion to amend by party litigants’ own volition by virtue of the mutually contractually agreed upon Stipulation of Settlement and Discontinuance. Rather, this is a judicial administrative rectification of the clerk of court files and records. The procedurally improper language as to the contradictory and incongruous attempted hybrid Stipulation of Settlement and Discontinuance yet reserving the preservation of the index number devoid of any party defendant by mere contract of party litigants without judicial intervention, is wholly procedurally improper and is thus rejected. Neither is it herein revisory or an exercise of appellate authority in the sua sponte vacating of the Interim Order. This Court’s sua sponte exercise of judicial discretion to vacate this February 20, 2024 Interim Order is warranted by the mistake and irregularity of the foundation underlying its issuance based upon the facts and proof plainly appearing in the clerk of court files and records, Plaintiff’s and Defendant’s papers; it is consistent with the relief sought in the motion to amend; it does not affect a substantial right nor prejudices neither party since they both of their own volition mutually contractually settled and discontinued this action no matter how in artfully drafted to their detriment in attempt to improperly impose directive without judicial intervention upon the clerk of court.

For the foregoing reasons, This Court Sua Sponte Vacates Interim Order dated February 20, 2024, and Plaintiff’s Motion to Amend Summons and Complaint and Add New Party pursuant to CPLR 305 (c), CPLR 2001, and CPLR 3025 (b) to remove outgoing No-Fault Insurer Defendant Progressive Northern Insurance Company as outgoing defendant and to add proposed incoming No-Fault Insurer Countrywide Insurance Company is hereby deemed moot as index number was disposed as of July 23, 2021 by Stipulation of Settlement and Discontinuance.

This constitutes the opinion, decision, and order of This Honorable Court.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated February 16, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross-motion for summary judgment while declining to consider additional papers submitted by plaintiff in support of what it denominated as an amended cross-motion for summary judgment and opposition to defendant’s motion.

The affidavit submitted by plaintiff in its initial opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to respond to defendant’s timely requests for additional verification, should have been denied.

Contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought by defendant herein in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2024 NY Slip Op 24111, *3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; Metro Health Prods., Inc. v [*2]Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

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

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