Decided on December 13, 2019

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

Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 17, 2018, deemed from a judgment of that court entered June 5, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 17, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,977.73.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 17, 2018 is vacated, plaintiff’s motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court entered April 17, 2018 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered on June 5, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the verification requests, examination under oath (EUO) scheduling letters, and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

With respect to the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon the claims in the amounts of $281.98, $140.99, $422.97, and $140.99, which claims defendant had denied on the [*2]ground that plaintiff had failed to provide requested verification within 120 days of the initial verification requests (see 11 NYCRR 65-3.5 [o]), defendant demonstrated, prima facie, that it had not received all of the requested verification. Plaintiff failed to raise a triable issue of fact to rebut defendant’s showing.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing the unpaid portion of claims which had sought the sums of $1,452.90 and $1,281.91, which defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant’s proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers’ compensation fee schedule. In opposition, plaintiff’s affidavit failed to raise a triable issue of fact with respect to those branches of defendant’s cross motion.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s remaining claims, which defendant had denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant established that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise an issue of fact in response.

Accordingly, the judgment is reversed, the order entered April 17, 2018 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on December 13, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered May 1, 2018. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff’s assignor had been injured during the course of employment. By order entered June 10, 2014, the Civil Court granted defendant’s cross motion to the extent of holding the matter in abeyance for 90 days pending the filing of an application to the Workers’ Compensation Board (Board). The court further stated that if plaintiff failed to file proof of such application with the court, defendant’s cross motion for summary judgment dismissing the complaint would be granted.

Defendant subsequently moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to comply with the Civil Court’s prior order in that plaintiff had not filed an application with the Board. Plaintiff cross-moved for summary judgment. By order entered May 1, 2018, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Since plaintiff did not demonstrate that it had complied with the Civil Court’s June 10, 2014 order requiring plaintiff to make a proper application to the Board to determine the parties’ rights under the Workers’ Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]), the order entered May 1, 2018 is affirmed.

To the extent that plaintiff argues that it believes that Workers’ Compensation Law § 28 [*2]renders any claim for workers’ compensation benefits untimely in this case—because plaintiff’s assignor did not make an application for benefits within two years of the date of the accident—such argument is unavailing, particularly where, as here, defendant demonstrated, and plaintiff did not deny, that defendant had timely denied plaintiff’s claim on the ground that plaintiff’s assignor was injured during the course of his employment (see New Millennium Radiology, P.C. v American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order is affirmed.

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 4, 2017. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

In this action by a provider, Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. (Gentlecare), to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on August 11, 2012, defendant American Independent Ins. Co. (AIIC) moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the action is barred under the doctrine of collateral estoppel by virtue of two determinations of the Supreme Court, Kings County: (1) an order entered May 13, 2014, granting, on default, a declaratory judgment stating, among other things, that the “pertinent accidents were staged,” and that, therefore, AIIC is not obligated to pay first-party benefits regarding specified claim numbers to Emmanuel Borgella, the assignor herein, or to other named parties who had defaulted in that action (which parties did not include Gentlecare); and (2) a decision after trial dated March 8, 2016, finding in favor of AIIC as against various parties, including Gentlecare, and directing that a judgment be settled on notice. By order entered October 4, 2017, the Civil Court granted AIIC’s motion. Gentlecare appeals, arguing that AIIC did not establish its collateral estoppel defense based on either document.

“Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, or those in privity, whether or not the tribunals or causes of action are the same” (Shifer v Shifer, 165 AD3d 721, 723 [2018]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). The party seeking to rely on collateral estoppel has the burden of demonstrating that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; Jamison v Aquai, 128 AD3d 775 [2015]), and that the other party “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 Manko v Gabay, 175 AD3d 484 [2019]).

The order entered May 13, 2014 did not name Gentlecare as one of the parties to whom AIIC was not obligated to pay first-party no-fault benefits, and AIIC failed to demonstrate that Gentlecare was in privity with the assignor herein, Emmanuel Borgella, who was named in the order (see e.g. Kolel Damsek Eliezer, Inc. v Schlesinger, 90 AD3d 851 [2011]). Thus, AIIC failed to establish that it is not obligated to pay first-party benefits to Gentlecare based upon the May 13, 2014 order.

AIIC also relied upon the March 8, 2016 decision rendered after trial in the Supreme Court, which directed a judgment to be settled on notice. It is well settled that “[a] decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel” (Egbert Sq. Realty, LLC v 112-114 Corp., 93 AD3d 687, 687 [2012]; see Huntington Med. Plaza, P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Although AIIC did not proffer any judgment delineating the rights of the parties, this court takes judicial notice that a judgment was, in fact, signed by Justice Jacobson on April 22, 2016 and entered on August 23, 2016 — more than a year before the Civil Court rendered its order in the instant action (see Thimmaiah v Air-India, Ltd., 19 Misc 3d 138[A], 2008 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The judgment clearly bars Gentlecare from seeking reimbursement for claims pertaining to the accident in question under policies naming its assignor, Emmanuel Borgella, as an insured or a claimant. Consequently, the order granting defendant’s motion for summary judgment should not be disturbed.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 4, 2017. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

In this action by a provider, Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. (Gentlecare), to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on August 11, 2012, defendant American Independent Ins. Co. (AIIC) moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the action is barred under the doctrine of collateral estoppel by virtue of two determinations of the Supreme Court, Kings County: (1) an order entered May 13, 2014, granting, on default, a declaratory judgment stating, among other things, that the “pertinent accidents were staged,” and that, therefore, AIIC is not obligated to pay first-party benefits regarding specified claim numbers to Emmanuel Borgella, the assignor herein, or to other named parties who had defaulted in that action (which parties did not include Gentlecare); and (2) a decision after trial dated March 8, 2016, finding in favor of AIIC as against various parties, including Gentlecare, and directing that a judgment be settled on notice. By order entered October 4, 2017, the Civil Court granted AIIC’s motion. Gentlecare appeals, arguing that AIIC did not establish its collateral estoppel defense based on either document.

“Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, or those in privity, whether or not the tribunals or causes of action are the same” (Shifer v Shifer, 165 AD3d 721, 723 [2018]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). The party seeking to rely on collateral estoppel has the burden of demonstrating that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; Jamison v Aquai, 128 AD3d 775 [2015]), and that the other party “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 Manko v Gabay, 175 AD3d 484 [2019]).

The order entered May 13, 2014 did not name Gentlecare as one of the parties to whom AIIC was not obligated to pay first-party no-fault benefits, and AIIC failed to demonstrate that Gentlecare was in privity with the assignor herein, Emmanuel Borgella, who was named in the order (see e.g. Kolel Damsek Eliezer, Inc. v Schlesinger, 90 AD3d 851 [2011]). Thus, AIIC failed to establish that it is not obligated to pay first-party benefits to Gentlecare based upon the May 13, 2014 order.

AIIC also relied upon the March 8, 2016 decision rendered after trial in the Supreme Court, which directed a judgment to be settled on notice. It is well settled that “[a] decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel” (Egbert Sq. Realty, LLC v 112-114 Corp., 93 AD3d 687, 687 [2012]; see Huntington Med. Plaza, P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Although AIIC did not proffer any judgment delineating the rights of the parties, this court takes judicial notice that a judgment was, in fact, signed by Justice Jacobson on April 22, 2016 and entered on August 23, 2016 — more than a year before the Civil Court rendered its order in the instant action (see Thimmaiah v Air-India, Ltd., 19 Misc 3d 138[A], 2008 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The judgment clearly bars Gentlecare from seeking reimbursement for claims pertaining to the accident in question under policies naming its assignor, Emmanuel Borgella, as an insured or a claimant. Consequently, the order granting defendant’s motion for summary judgment should not be disturbed.

Accordingly, the order is affirmed.

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