Decided on August 14, 2020

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

Decided on August 14, 2020

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

CV-707605/17-BX

Eppinger, Reingold & Korder (Ronald M. Eppinger of counsel), for plaintiff

Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for defendant

In this action to recover assigned first-party benefits for medical services rendered (see Insurance Law § 5101, et seq.), defendant Hereford Insurance Company (defendant) moves, pursuant to CPLR 3212, for an order of summary judgment dismissing the complaint of plaintiff Doctors United Inc., as assignee of Keith Davis (plaintiff). In opposition, plaintiff argues that the court should dismiss defendant’s motion as untimely and that the court should grant plaintiff summary judgment for defendant’s failure to either pay or deny the subject claims.

The court now dismisses defendant’s motion as untimely without good cause shown and declines to grant plaintiff’s request for the same relief, as also belatedly asserted without satisfactory excuse.

BACKGROUND

Plaintiff filed a summons and complaint against defendant, seeking overdue no-fault benefits plus interest thereon and attorneys’ fees. Annexed to the summons and complaint is an incomplete copy of a spreadsheet, entitled “Details of Disputed Claim” (summons and complaint). Said document includes, among other things, a column identified as “Date Bill Mailed” with numerous rows of noted dates (id.). The “Details of Disputed Claim” does not indicate what services, if any, were billed to defendant and does not chronicle where defendant allegedly “mailed” the bills (id.).

Defendant filed an answer, demand for verified written interrogatories and various demands. In response, plaintiff alleges that it provided defendant with discovery, including “a complete set of all of the bills at issue in this action” (affirmation in opposition, ¶ 6). However, no proof of mailing for those bills and no copies of the bills exist in the record.

Plaintiff filed a notice of trial, dated July 3, 2018.^[FN1] On November 16, 2018, defendant served plaintiff, by mail, with this motion for an order of summary judgment, dismissing the complaint on the ground that plaintiff never billed defendant (affidavit of service, dated Nov. 16, 2018). Plaintiff opposes the motion arguing that the motion should be dismissed as untimely, pursuant to CPLR 3212 (a).^[FN2] Plaintiff also seeks an order of summary judgment, contending that defendant neither paid nor denied any of the subject bills (see CPLR 3212 [b] [governing the grounds and supporting proof for a summary judgment motion]).

DISCUSSION

A motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (CPLR 3212 [a]; see also Uniform Rules for New York State Trial Courts [22 NYCRR] § 208.7 [b] [providing that “(a)ll formal pleadings in this court and verifications thereof shall be in conformity with CPLR article 30”]). The Court of Appeals defined “good cause” as requiring “a satisfactory explanation for the untimeliness” of the motion, and the Court interpreted Rule 3212 as otherwise prohibiting tardy, but “meritorious, nonprejudicial filings” (Brill v City of New York, 2 NY3d 648, 652 [2004, Kaye, Ch. J.] [construing rule 3212 (a) in the context of a Civil Court proceeding]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2006 mem] [citing Brill for the proposition that “statutory time frames . . . are not options, they are requirements”]; Rivera v State of New York, 34 NY3d 383, 402, n 12 [2019, Rivera, J., dissenting] [providing, in dicta, “that trial courts may only permit late summary judgment where the movant gives ‘a satisfactory explanation for the untimeliness'”]).

In refusing to countenance violations of the statutory deadline — absent good cause [*2]shown — the Court of Appeals emphasized with hope that “movants will develop a habit of compliance with [CPLR 3212 (a)] . . . rather than delay [motions for summary judgment] until trial looms” (id., at 653). The Court was firm that “not considering the merits of an unexcused, untimely motion” is both (1) “the correct remedy under the law” and (2) the result best calculated to “bring an undesirable practice to an end” (id., n 4).

Applying these principles here, defendant’s motion for summary judgment must be dismissed. Defendant concedes that it served this motion on plaintiff after the conclusion of the 120-day time period set forth in CPLR 3212 (a) (see CPLR 2103 [b] [2] [providing that, where the law prescribes a time period for service, the time “is measured from the service of a paper”]; see also CPLR 2211 [providing that “[a] motion on notice is made when a notice of the motion . . . is served”]; Esdaille v Whitehall Realty Co., 61 AD3d 435, 435-436 [1st Dept 2009] [applying the same]).^[FN3] Moreover, defendant merely contends that the belatedly filed motion does not prejudice plaintiff, appearing to overlook the need to establish a proper excuse for its tardiness. “No excuse at all . . . cannot be ‘good cause'” (Brill, 2 NY3d at 652).

Similarly, plaintiff’s request for summary judgement fails as asserted late without any proffered excuse. Plaintiff seeks summary judgment for the first time in opposition to defendant’s motion, and plaintiff served its affirmation in opposition well beyond 120 days after service of the notice of trial (affidavit of service, dated March 6, 2019).

Accordingly, it is

ORDERED that defendant’s motion for an order of summary judgment, dismissing plaintiff’s cause of action, is dismissed as untimely.

The constitutes the decision and order of the court.

DATE: August 11, 2020
Emily Morales-Minerva, J.

Footnotes

Footnote 1:Neither party indicates when plaintiff served the notice of trial on defendant, although there is no dispute that plaintiff served the notice of trial over 120 days prior to defendant serving this motion for summary judgment.

Footnote 2: Rule 3212 (a) of the CPLR provides, among other things, that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

Footnote 3: Defendant states: “The motion was drafted, signed and dated November 13, 2018 — which is within 120 days of the notice of trial. While the motion was not served until a few days later, Plaintiff is not prejudiced by the late motion” (affirmation in reply, ¶ 4).

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

The process server’s affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 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]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

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

[*1]

Civil Court of the City of New York, Bronx County, August 7, 2020

APPEARANCES OF COUNSEL

McDonnell Adels & Klestzick, PLLC, Garden City (Joseph A. Schwarzenberg of counsel), for defendant.

Sanders Barshay Grossman, PLLC, Garden City (Edward A. Cespedes of counsel), for plaintiff.

The plaintiff filed the instant action against the defendant seeking to recover assigned no-fault insurance benefits. The defendant now moves the court pursuant to 22 NYCRR 208.17 (c) and CPLR 3126 to strike plaintiff’s notice of trial and dismiss the complaint on the ground that further pretrial discovery is warranted on its Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), or in the alternative to strike plaintiff’s notice of trial and direct plaintiff to appear for a deposition and to provide responses to defendant’s written discovery demands pertaining to Mallela material.

Plaintiff filed a notice of trial and certificate of readiness for trial on August 9, 2019, which stated that discovery proceedings were complete and no outstanding requests for discovery remained. On August 26, 2019, defendant objected to plaintiff’s discovery responses by letter. In its motion, defendant argues that the responses received by the plaintiff are nonresponsive, because the plaintiff objected to all of the defendant’s demands requesting documents and/or information intended to shed light on plaintiff’s ownership, corporate structure, and operations. The plaintiff argues that the defendant’s motion is moot as it served responses and documents on the defendant.

Plaintiff also contends that defendant’s defenses are confined to the four corners of its denial, which was based on the fee schedule, such that Mallela material is irrelevant. The court notes that responses to the interrogatories, combined demands, and notice to preserve attached to defendant’s motion were objections with respect to Mallela material. However, plaintiff [*2]provided medical records, NYS Forms NF-3 and NF-10, and an assignment of benefits form pertaining to the medical services at issue.

Standard of Review

Pursuant to 22 NYCRR 208.17 (c), a party may move within 20 days after service of a notice of trial to strike the action from the calendar. CPLR 3126 permits the court to dismiss the{**68 Misc 3d at 881} action where a party “wilfully fails to disclose information which the court finds ought to have been disclosed.” Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy that is only appropriate where a party’s conduct is shown to be willful, contumacious or in bad faith. (Henderson-Jones v City of New York, 87 AD3d 498, 503-504 [1st Dept 2011]; see also Sigma Psychological, P.C. v Chubb Indem. Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51107[U] [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2013].) Willful and contumacious behavior can be inferred by a failure to comply with court orders without adequate excuse. (Henderson, 87 AD3d at 503-505.) The court finds that plaintiff did not engage in willful, contumacious or bad faith conduct. Thus, the court denies defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

The court may vacate a notice of trial where the certificate of readiness falsely states that there are no outstanding discovery requests. (Tahir Med., P.C. v Central Mut. Fire Ins. Co., 42 Misc 3d 135[A], 2014 NY Slip Op 50092[U] [App Term, 1st Dept 2014]; 22 NYCRR 208.17 [c].) As the court explains below, defendant is entitled to further discovery. Thus, the court grants defendant’s motion to strike plaintiff’s notice of trial.

Pursuant to CPLR 3124, defendant moves to compel compliance with its outstanding discovery requests for Mallela material. Contrary to plaintiff’s assertion, a Mallela defense is not precludable. (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) A motion to compel responses to discovery demands and interrogatories is properly denied where the demands and interrogatories seek information that is irrelevant, overly broad, or burdensome. (See Pesce v Fernandez, 144 AD3d 653 [2d Dept 2016].) The moving party bears the burden of demonstrating that the method of discovery sought would result in the disclosure of relevant evidence or was reasonably calculated to lead to the discovery of information bearing on the claims. (See id.; CPLR 3101 [a].)

Where an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense. (Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) Courts have {**68 Misc 3d at 882}permitted extensive discovery where the movant alleges that an unlicensed individual receives a disproportionate share of the corporation’s revenue. (See One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2d Dept 2008].) But where a party does not set forth case-specific allegations in support of its defense of fraudulent incorporation, discovery is not justified. (Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 36 Misc 3d 127[A], 2012 NY Slip Op 51165[U] [App Term, 1st Dept 2012].)

Defendant’s motion relies on the affidavit of Michelle Whalen, who works at defendant’s Special Investigative Unit. Whalen affirms that plaintiff consistently billed identical units of pf-NCS testing for the cervical and lumbar spine. Whalen affirms that this suggests a pattern of billing designed by profit-motivated, unlicensed laypersons. Whalen also affirms that according to an expert retained by defendant, this testing was medically unnecessary. Such allegations have been found sufficient to warrant discovery pertaining to a Mallela defense. (See Statewide Med. Servs., P.C. v Travelers Ins. Co., 16 Misc 3d 127[A], 2007 NY Slip Op 51253[U] [App Term, 1st Dept 2007], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005].) In light of the case-specific allegations set forth by defendant about the pattern of treatment provided by plaintiff, the court now grants defendant’s motion to compel in part as to matters that are material and necessary to the prosecution of this action.

The court finds that the defendant’s interrogatories are not fully or meaningfully responded to. (See Total Chiropractic, P.C. v USAA Cas. Ins. Co., 56 Misc 3d 1213[A], 2017 NY Slip Op 50977[U] [Suffolk Dist Ct 2017], citing Kihl v Pfeffer, 94 NY2d 118, 121, 123 [1999] [affirming trial court’s striking of complaint where plaintiff failed to correct initial interrogatory responses that were “not responsive” and “lack(ed) any reasonable detail”].) Moreover, plaintiff’s responses were untimely. (CPLR 3133 [a] [“Within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects . . . .”].) When a party fails to object to interrogatories in the time and manner prescribed by CPLR 3133, the court’s inquiry is limited to whether the demands call for disclosure of privileged information or whether the demands are palpably improper. ({**68 Misc 3d at 883}Reichmann v Pro Performance Sports, LLC, 2009 NY Slip Op 33059[U] [Sup Ct, NY County 2009], citing Cooper v Drobenko Bros. Realty, 200 AD2d 415 [1st Dept 1994]; see also Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10, 12 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) The defendant is entitled to further responses to their interrogatories where they are not palpably improper, privileged, or adequately responded to.

The plaintiff is directed to fully and adequately respond to the following interrogatories: Nos. 2, 3, 4, 5, 6, 8, 9, 10 and 11. The plaintiff must fully respond to the questions asked with a written response, verified by a person with knowledge. (See CPLR 3133 [b].)

The plaintiff is directed to answer the following combined demands: Nos. 2, 3, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21. The court denies defendant’s application as to the remaining demands.

Defendant’s application for an order directing plaintiff to appear for a deposition is granted, as defendant is entitled to discovery on its Mallela defense. (See Bonsai Med. Acupuncture, P.C. v Chubb Group of Ins., 22 Misc 3d 140[A], 2009 NY Slip Op 50430[U] [App Term, 1st Dept 2009]; New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009].)

Conclusion

Accordingly, it is ordered that the clerk of the court vacate the notice of trial. It is further ordered that the defendant’s motion to compel discovery is granted in accordance with this order. And it is further ordered that within 60 days from the date of service of a copy of this order with notice of entry upon the parties, the plaintiff shall serve supplemental responses in accordance with this order. And it is further ordered in light of the ongoing COVID-19 pandemic, that plaintiff appear for a telephonic or videoconference deposition at a date and time mutually convenient to all parties, using audio-video technology mutually agreed upon by all parties, within 45 days of receipt of all responses to discovery. And it is further ordered that the plaintiff may be precluded upon motion from offering any evidence at trial as to items it fails to provide or respond to per this order.

[*1] (July 29, 2020)

Bruno, Gerbino & Soriano, LLP, Melville, NY (Nathan M. Shapiro of counsel), for appellant.

In an action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered August 1, 2019. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against the defendants Roy Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C., upon their failure to appear or answer the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Ameriprise Insurance Company, issued an automobile insurance policy to the defendant Roy Kim and his wife which covered, inter alia, a 2012 Chevrolet Camaro for the period from May 14, 2017, through November 14, 2017. Pursuant to the policy, Kim reported to the plaintiff that on August 14, 2017, the subject vehicle was involved in a hit-and-run accident in Queens, in which another vehicle allegedly reversed and struck the subject vehicle while it was parked, and then fled the scene. Upon receipt of such notification, the plaintiff conducted an investigation and concluded that neither Kim’s claim nor those of his no-fault benefit assignees were covered under the policy. The plaintiff commenced this action, inter alia, for a judgment declaring that pursuant to the policy, it has no duty to indemnify the defendants for any claims arising out of the subject accident. The defendants Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C. (hereinafter collectively the non-answering defendants) failed to appear or answer the complaint. The plaintiff then moved, inter alia, for leave to enter a default judgment against the non-answering defendants and the Supreme Court denied the motion.

“A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim” (Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606 [2017]; see CPLR 3215 [f]). “ '[A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that [the plaintiff] establish a right to a declaration’ ” against the defendants (JBBNY, LLC v Dedvukaj, 171 AD3d 898, 902 [2019], quoting Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 AD3d 1493, 1494 [2009]; see Merchants Ins. Co. of N.H. v Long Is. Pet Cemetery, 206 AD2d 827, 828 [1994]).

Here, while the plaintiff submitted proof of proper service of the summons and the complaint, the non-answering defendants’ default, and the facts constituting the plaintiff’s claim, the plaintiff’s submissions in support of the motion failed to establish its right to the declarations sought (see JBBNY, LLC v Dedvukaj, 171 AD3d at 902). As such, we agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the non-answering defendants.

Based on the foregoing, the plaintiff’s remaining contention has been rendered academic. Rivera, J.P., Chambers, Iannacci and Wooten, JJ., concur.

Decided on July 10, 2020

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

Decided on July 10, 2020

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

Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), 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 October 15, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action against “21st Century Insurance Company” in the Civil Court on June 22, 2017 to recover assigned first-party no-fault benefits for services that had been provided to its assignor, who had allegedly been injured in an accident on June 7, 2011. Prior to the commencement of this action, 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had brought a declaratory judgment action in the Supreme Court, New York County, against plaintiff and its assignor herein, among other parties, pertaining to the June 7, 2011 accident. By order dated June 3, 2014, the Supreme Court granted, on default, a motion by 21st Century Advantage Insurance Company and 21st Century Security Insurance Company for a default judgment against the provider and assignor herein and “ordered, adjudged and decreed” that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had “no duty to provide coverage” for the accident at issue (occurring on June 7, 2011); that the applicable insurance policy is null and void with respect to that accident; [*2]and that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company are “not obligated to provide coverage for no-fault reimbursement based upon the failure of the defendants [in the Supreme Court action] to verify their claims.” A Supreme Court judgment, dated July 20, 2017, set forth the same declaration as stated in the June 3, 2014 order. Relying upon the Supreme Court’s order and judgment, defendant moved in the Civil Court for summary judgment dismissing the complaint. Plaintiff opposed the motion on the grounds that there is no collateral estoppel or res judicata effect from the Supreme Court’s order and judgment, and that defendant had failed to establish a prima facie case. Plaintiff also cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court, entered October 15, 2018, as denied defendant’s motion.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). 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, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court declaratory judgment, entered on default, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [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., 250 NY 304; 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]; EBM Med. Health Care, P.C., 38 Misc 3d 1).

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

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

Goldberg Miller & Rubin, P.C. (Timothy Bishop of counsel), for appellant. Law Office of Marina Josovich, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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 moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff had failed to respond to defendant’s timely requests for additional verification.

Defendant’s cross motion was properly denied, as defendant failed to establish, prima facie, that its requests for additional verification were proper or timely, since defendant’s letters, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting such verification from the assignor (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), and that verification remains [*2]outstanding.

Plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

WESTON, J., concurs in part and dissents in part, and votes to reverse the order, deny plaintiff’s motion for summary judgment, and grant defendant’s cross motion for summary judgment dismissing the complaint in the following memorandum:

While I agree with the majority that plaintiff’s motion should have been denied, I disagree with the majority’s conclusion that defendant’s cross motion was properly denied. Accordingly, I would reverse the order and grant summary judgment to defendant.

In this no-fault action, plaintiff Clear Water Psychological Services, P.C., as assignee of Nicole Mitchell, seeks payment for services rendered to Ms. Mitchell. Following receipt of plaintiff’s claims, defendant timely issued additional verification request letters seeking information to facilitate defendant’s ability to process the claims. The letters were sent to plaintiff and copied to Ms. Mitchell and her attorney. Plaintiff never responded to defendant’s letters.

After plaintiff moved for summary judgment, defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that the action was premature since plaintiff had failed to respond to its requests for verification. Defendant argued that the time to either pay the claim or issue a denial was tolled indefinitely and this action was premature (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]; see also Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007] [when a no-fault medical service provider fails to respond to the requests for verification, the 30 days in which to pay or deny the claim are tolled and do not begin to run]).

It is undisputed that defendant’s additional verification letters were mailed timely.

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter . . . insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must [*3]decide whether to pay or deny the claim is indefinitely tolled (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317; see also Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864-865 [2009])”

(Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2013]). Here, defendant’s initial and follow-up letters were all sent within the prescribed time frame.

Defendant’s letters were detailed, unambiguous, and exacting. They did more than merely advise of processing delays. The letters stated: “Be advised that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verifications under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (emphasis added). Plaintiff never supplied any information and failed to provide any explanation for the failure to comply.

These letters are more than mere processing delay letters. They were mailed to plaintiff, the insured, and the insured’s counselor, each specifically instructing the applicant to take action to prevent denial of the claim. Plaintiff took no action, even to state that the materials were not under its control or possession. While the majority may have a preference as to how the letters should be addressed, that preference does not equate to legal insufficiency. Indeed, plaintiff’s claim was supported by an assignment of benefit form executed by the insured. In accordance with this assignment, arguably plaintiff was in the position to request any additional documentation from the assignor to ensure its claims could be processed by defendant.

Accordingly, I would grant summary judgment to defendant.