Decided on February 19, 2021

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

Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro and Susan Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered January 11, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. Insofar as is relevant to this appeal, the Civil Court granted this branch of defendant’s motion and found that the branch of the motion seeking to toll statutory no-fault interest was moot.

For the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (67 Misc 3d 142[A], 2020 NY Slip Op 50734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion (see Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

Decided on February 19, 2021

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

Law Office of David O’Connor, P.C. (David B. O’Connor of counsel), for appellant. Bruno, Gerbino. Soriano & Aitken, LLP (Nathan Shapiro and Susan Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered January 11, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. Insofar as is relevant to this appeal, the Civil Court granted this branch of defendant’s motion and found that the branch of the motion seeking to toll statutory no-fault interest was moot.

For the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (67 Misc 3d 142[A], 2020 NY Slip Op 50734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion (see Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered June 8, 2018, which, in effect, granted reargument and adhered to the original determination, which granted the petition to vacate a master arbitrator’s award in favor of respondent, unanimously reversed, on the law, without costs, the petition denied, the master arbitrator’s award confirmed, and the matter remanded for a determination of respondent’s attorneys’ fees.

Although the motion court purported to deny respondent’s motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable (CPLR 5701 [a] [2] [viii]; Castillo v Mount Sinai Hosp., 140 AD3d 619, 620 [1st Dept 2016], lv denied 28 NY3d 913 [2017]).

As respondent argued, the court overlooked existing authority confirming that CPLR 7511 (b) limits courts’ vacatur of arbitration awards to circumstances not present in this case (see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999] [“(E)ven in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice”]).

The order that vacated the arbitration award cited no basis for vacatur under CPLR 7511 (b), finding only that the arbitrator and master arbitrator applied the wrong burden of proof to plaintiff’s fraudulent incorporation defense. Although on reargument the motion court determined that this Court’s decision in Country-Wide Ins. Co. v TC Acupuncture, P.C. (140 AD3d 643 [1st Dept 2016]), decided June 28, 2016, could not apply to the petition decided on June 9, 2016, Country-Wide did not state a new proposition of law, but merely cited existing authority (id. at 643-644 [“Even assuming, without deciding, that the master arbitrator applied the wrong burden of proof, the award is not subject to vacatur on that ground”], citing New York State Correctional Officers, 94 NY2d at 326).

Respondent is entitled to its reasonable attorneys’ fees on appeal (11 NYCRR 65-4.10 [j] [4]; Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 415 [1st Dept 2020]). We therefore remand the matter to Supreme Court for the calculation of those fees. Concur—Renwick, J.P., Kern, Singh, Shulman, JJ.

CV-734629-18

Plaintiff’s Firm
Richard Rozhik
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
Telephone: (718) 975 – 2035
Facsimile: (718) 975 – 2037
rrozhik@rybakfirm.com

Defendant’s Firm
Sabiha Farkas, Esq.
Law Office of Patrick Neglia
200 Broadhollow Road, Suite 207
Melville, New York 11747
(T) (866) 543-0404 x60405
(F) (877) 389-1097
sfarkas@mercuryinsurance.com

Upon the foregoing cited papers and after oral arguments on January 8, 2021, pursuant to [*2]CPLR §3212(g), the Decision and Order on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment, is as follows:

PROCEDURAL POSTURE:

In this No-Fault proceeding, Mercury Casualty Insurance Company (“Defendant/Insurer”), appearing through its attorney, pursuant to CPLR §3212(a) moves for Summary Judgment and dismissal of the complaint as barred by the doctrines of collateral estoppel and res judicata. In the alternative, Defendant moves for partial Summary Judgment seeking a prima facie finding that it timely and properly denied the bills in dispute. Total Chiropractic, P.C. (“Plaintiff/Provider”), appearing through its attorney, opposes Defendant’s motion. Pursuant to CPLR §3212(a), Plaintiff cross-moves for an Order granting Summary Judgment seeking a prima facie finding that it timely and properly mailed said bills totaling $2,100.00. Plaintiff further submits that the Declaratory Judgment issued against it, was entered on default, the issues have not been litigated therefore collateral estoppel and res judicata do not apply.^[FN1] Based on the foregoing, Defendant’s motion is GRANTED and Plaintiff’s cross-motion is DENIED.

FACTUAL BACKGROUND:

Plaintiff commenced the instant No-Fault action seeking payment for medical services it rendered to Assignor Santia Louis as a result of alleged injuries related to a July 10, 2015 motor vehicle accident under claim number 2015004500398710.

Defendant commenced the Declaratory Judgment action against Plaintiff on October 6, 2016, in Supreme Court of the State of New York in Orange County, under Index Number EF 004083-2016 seeking an Order that Plaintiff not be entitled to payment for the claims submitted to Defendant. Specifically, Defendant alleged that the Assignor made material misrepresentations about her actual place of residence, which began with the procurement of the policy and continued until the date of motor vehicle accident. The Assignor’s misrepresentation reduced the amount of her policy premiums.^[FN2]

Defendant was granted its application for a Declaratory Judgment on December 5, 2016, where Orange County Supreme Court Justice Vazquez-Doles concluded “…the [Defendant] has no duty to provide any first party benefits coverage to [Assignor], and other interested parties [*3]listed as defendants,” and that Defendant “is entitled to monetary relief against [Assignor]”^[FN3] . Plaintiff failed to file an answer or a motion to renew or re-argue or appeal the Orange County Declaratory Judgment action. On December 13, 2016, Defendant served the Plaintiff the Orange County Declaratory Judgment.^[FN4]

Plaintiff commenced the instant No-Fault action on August 2, 2018 and issue was joined on September 19, 2018.^[FN5]

POSITION OF THE PARTIES:

Defendant avers its Motion for Summary Judgment should be granted in its entirety and Plaintiff’s complaint should be dismissed with prejudice. Defendant relies on the above-referenced Orange County Declaratory Judgement in support of its collateral estoppel and res judicata position since said Declaratory Judgment ordered that Mercury “has no duty to provide any first party benefits coverage to Defendant Santia Louis, and other interested parties listed as Defendants, arising out of the same July 10, 2015 motor vehicle accident as in the instant matter, given the Defendant’s misrepresentation of her place of residence was “material” as defined in Insurance Law §3105(b).” The Defendant also relies on the October 23, 2017 Decision and Order issued by Kings County Civil Court Judge Richard Montelione dismissing with prejudice a related matter bearing the caption Total Chiropractic, P.C. a/a/o Santia Louis, et. al., Index Number 073058/15, that also relied on the same Orange County Declaratory Judgment.

Plaintiff avers that said Declaratory Judgment has no preclusive effect in this case because it applies only to the Assignor and not the service provider Plaintiff in this matter. Plaintiff points to Jamaica Wellness Med., P.C. v. Mercury Cas. Co. where the Appellate Term opined the “Supreme Court order in the declaratory judgment action merely awarded a default judgment to Mercury against [Plaintiff]’s assignor, but did not declare the rights of Mercury as against [Plaintiff], the Supreme Court order cannot be considered a conclusive final determination of [Plaintiff]’s rights and, thus, can have no preclusive effect on the no-fault action at bar.”^[FN6]

Plaintiff also argues that Defendant failed to establish it timely and properly denied Plaintiff’s claim and is now precluded from raising the defense of the Assignor’s material misrepresentations to procure the underlying insurance policy. Plaintiff relies on the Appellate Division holding in Westchester Med. Ctr. v. GMAC Ins. Co. Online, Inc, which found that “although the defendants contend that they submitted evidence showing that the plaintiff’s assignor misrepresented his state of residence in connection with the issuance of the subject insurance policy, the defendants are precluded from asserting that defense, as a result of their [*4]untimely denial of the claim.”^[FN7] See also Gutierrez v. United Servs. Auto. Assn., holding that “Plaintiff correctly argues that defendant failed to demonstrate that it is not precluded from asserting its proffered defense—that the insurance policy at issue was fraudulently procured—as it failed to establish that it had timely denied plaintiff’s claim on that ground.”^[FN8] Any so-called global or blanket denial of claim form that does not specifically address Plaintiff’s claim is insufficient to avoid the preclusion of the defense.^[FN9]

ANALYSIS:

In deciding a motion for Summary Judgment, the Court’s role is solely to determine if any triable issues exist, not to determine the merits of any such issues. Sillman v. Twentierth Centry-Fox Film Corp., 3 NY.2d 395 (1957). Summary Judgment may only be granted if no genuine triable issue of fact is presented. See Gomes v. Courtesy Bus Co., 251 AD2d 625 (2nd Dep’t 1998).

The movant must establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” in the movant’s favor and must do so by evidentiary proof in admissible form. See CPLR §3212(b); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 NY2d 1065 (1979). “The proponent of a Summary Judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1986).

Once such entitlement has been demonstrated by the movant, then the burden shifts to the party opposing the motion to demonstrate by admissible evidence that existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so. Zuckerman v. City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978).

Under New York state law, Default Judgments that have not been vacated, are final orders and can preclude Plaintiff’s claims for payment. See Lazides v P & G Enters., 58 AD3d 607, 871 NYS2d 357 [2nd Dept 2009], revg 2007 WL 6861118 [Sup Ct, Kings County 2007]. The courts have reasoned that to hold otherwise would destroy or impair the rights or interests established by Default Judgments. See Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307, 165 NE 456 [1929]; Great Health Care Chiropractic, P.C. v Progressive Ins. Co., 48 Misc 3d 134[A], 18 NYS3d 579, 2015 NY Slip Op 51077[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud. Dists. 2015] An order specifying the court’s Declaratory Judgment is a conclusive [*5]final determination, notwithstanding that it was entered on default. See Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 16 NYS3d 366 [App. Term, 2nd Dept, 2d, 11th & 13th Jud. Dists., 2015].

New York State Insurance Law and Regulations 11 NYCRR §65 (“Regulations”) provide that an insurer must pay or deny a claim for No-Fault benefits within thirty days from the receipt of the claim. See Insurance Law§5106 and Regulations §65-3. Defendant must produce legally sufficient evidence that a denial form was generated and mailed within 30-days of the receipt of the claim for No-Fault benefits, or the time was tolled by issuing a proper verification request. Jul Pol Corp. v State Farm Fire and Casualty Company, 2003 NY Slip 51153 (U) (App. Term, 2nd and 11th Jud. Distrs., July 9, 2003).

The threshold issue hereis whether a default judgment that was not vacated has preclusive effects to permit the Plaintiff to collect payment for a claim submitted as first party benefits under New York’s No-Fault Insurance law. If established, this Court does not have to consider the issue of whether Plaintiff met its prima facie burden warranting payment for medical services or whether the Defendant established the bills in dispute were appropriately denied.

The Court finds that the Orange County Declaratory Judgment is a final Order that names both the Assignor and the Plaintiff and clearly delineates the rights and obligations of the parties.^[FN10] The Declaratory Judgment clearly recites the relief requested by the Defendant and decrees the Defendant “has no duty to provide any first party benefits coverage to [Assignor], and other interested parties listed as defendants.”^[FN11] The Plaintiff and Assignors are named Defendants on the Orange County Declaratory Judgment.^[FN12] In its affidavits, Plaintiff failed to produce any evidence to raise a triable issue of fact regarding whether it is covered as a Defendant in the Orange County Declaratory Judgment.

The Court is not persuaded by Plaintiff’s reliance on Jamaica Wellness Med P.C. v. Mercury Cas. Co., 2018 NY Slip Op 51128 (U), as its inapplicable to the instant matter. The default judgment granted in the Jamaica Wellness Medical case was only against the Assignor, as the Plaintiff provider had appeared in the action and served an Answer. The Appellate Term specifically notes that “upon review of the record, we find that, as the March 23, 2016 Supreme Court order in the declaratory judgment action merely awarded a default judgment action to Mercury against Jamaica’s assignor, but did not declare the rights of Mercury as against Jamaica.”^[FN13] Therefore the facts here are distinguishable given that Mercury’s Declaratory Judgment Order entered on default was specifically against both Assignor Santia Louis and Plaintiff provider Total Chiropractic P.C., who were both named in the Orange County Declaratory Judgment action and the case herein, and both failed to respond to the Orange County Declaratory Judgment action.

Finally, the Appellate Division, 2nd Department held that when an accident victim assigns his or her No-Fault claim to a medical provider, pursuant to 11 NYCRR 65-3.11, the medical provider as the “assignee ‘stands in the shoes’ of an assignor and thus acquires no greater rights than its assignor.” Long Island Radiology v. Allstate Ins. Co., 36 AD3d 763, 830 N.Y.S.2d 192 (2nd Dept. 2007). If a certain defense may be raised by the Defendants against the injured party, it is available as against the provider who accepts the assignments of no-fault benefits. As such, a finding of material misrepresentation of an assignor would be imputed onto the health care provider who takes an assignment of benefits and assumes this risk when accepting the assignment.

CONCLUSION:

Accordingly, the Orange County Declaratory Judgment declared the rights and obligations of both the Plaintiff and the Assignor which found there is no coverage based on the Assignor’s material misrepresentations about her residence. The Court need not consider whether either party established their respective prima facie cases.

The Defendant’s motion is GRANTED and the Plaintiff’s motion is DENIED as moot. The complaint is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Date: February 8, 2021
Brooklyn, New York
Hon. Patria Frias-Colón
Civil Court, Kings County

Footnotes

Footnote 1:On January 11, 2017 Defendant held an inquest against the Assignor wherein Defendant was awarded judgment in the amount of $81,021.15 for damages plus $5,745.50 in court costs and attorney fees. See the Trial Decision in Defendant’s Exhibit G.

Footnote 2:See Defendant’s Exhibit C, Summons and Verified Complaint, Index Number EF 004083-2016 and Exhibit E, Transcript of Santia Louis Examination Under Oath (EUO) dated November 4, 2015.

Footnote 3:See Defendant’s Motion Exhibit A, Judgment, Notice of Entry, and Affidavit of Service.

Footnote 4:Id.

Footnote 5:See Plaintiff’s Exhibit 2 and 3.

Footnote 6:60 Misc 3d 139(A) (App. Term, 2d Dep’t, 2018).

Footnote 7:80 AD3d 603, 604 (2d Dep’t, 2011).

Footnote 8:47 Misc 3d 152(A) (App. Term, 2d Dep’t, 2015).

Footnote 9:See St. Barnabas Hosp. v. Allstate Ins. Co., 66 AD3d 996 (2d Dep’t, 2009); A & S Med. P.C. v. Allstate Ins. Co., 15 AD3d 170 (1st Dep’t, 2005), affirming 196 Misc 2d 322 (App. Term, 1st Dep’t, 2003).

Footnote 10:See Defendant Motion Exhibit A, Judgment, Notice of Entry, and Affidavit of Service.

Footnote 11:Id.

Footnote 12:Id.

Footnote 13:Jamaica Wellness Med P.C. v. Mercury Cas. Co., 2018 NY Slip Op 51128 (U)

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 31, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

Plaintiff Allay Medical Services, P.C. (Allay) commenced this action on June 1, 2016 to recover assigned first-party no-fault benefits for injuries sustained by “Miller, Nichole” in an accident on October 31, 2015, the complaint stating that claim number 363323-GC had been assigned to the matter. Defendant Nationwide Ins. (Nationwide) served an answer and, thereafter, moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred, insofar as is relevant, under the doctrine of res judicata, by an order and judgment in a Supreme Court declaratory judgment action. The Supreme Court order and judgment, entered April 25, 2016 upon the default of Allay in opposing a motion by Nationwide, declared that Nationwide was “under no obligation to pay any of the claims identified in Exhibit 1 to the Complaint.” Among other things, Exhibit 1 identified claim number 363323-GC and an accident on October 31, 2015, and listed the eligible injured person as having the initials N.M. Plaintiff opposed defendant’s motion in the Civil Court. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered May 31, 2019 as denied the motion.

For the reasons stated in Allay Med. Servs., as Assignee of Diop, Gregoria v Nationwide Ins. (— Misc 3d &mdash, 2021 NY Slip Op _____ [appeal No. 2019-1180 K C], decided herewith), the order, insofar as appealed from, is reversed, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

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

Hollander Legal Group , P.C. (Allan S. Holllander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated May 31, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

Plaintiff Allay Medical Services, P.C. (Allay) commenced this action on June 1, 2016 to recover assigned first-party no-fault benefits for injuries sustained by “Diop, Gregoria” in an accident on July 3, 2015, the complaint stating that claim number 859968 had been assigned to the matter. Defendant Nationwide Ins. (Nationwide) served an answer and, thereafter, moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred, insofar as is relevant, under the doctrine of res judicata, by an order and judgment in a Supreme Court declaratory judgment action. The Supreme Court order and judgment, entered April 25, 2016 upon the default of Allay in opposing a motion by Nationwide, declared that Nationwide was “under no obligation to pay any of the claims identified in Exhibit 1 to the Complaint.” Among other things, Exhibit 1 identified claim number 859968 and an accident on July 3, 2015, and listed the eligible injured person as having the initials G.D. Plaintiff opposed defendant’s motion in the Civil Court. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered May 31, 2019 as denied the motion.

Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue was joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for [*2]summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).

“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]).

As defendant’s moving papers sufficiently established that the claim number and the date of the subject accident in the action at bar are identical to those in the prior action where there has been a final adjudication of the claim on the merits (see Ciraldo, 140 AD3d at 913), plaintiff’s present action in the Civil Court was precluded under the doctrine of res judicata. Consequently, in light of the Supreme Court’s order and judgment, the Civil Court should have granted defendant’s motion (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 this action would destroy or impair rights or interests established by the judgment and order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; 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 at 2).

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

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

Law Office of David O’Connor, P.C. (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Philip Hom, J.), entered February 20, 2019. The order granted the branch of defendant’s motion seeking dismissal of the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking dismissal of the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel is denied and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Plaintiff commenced this action in 2003 to recover first-party no-fault benefits as assignee of the eligible injured person for services provided to its assignor, who was allegedly injured in a motor vehicle accident on August 26, 2002. Thereafter, State Farm commenced a declaratory judgment action in Supreme Court, Nassau County, against the assignor and a number of other individuals. Upon the default of the assignor, among others, in submitting opposition to State Farm’s motion for declaratory relief, the Supreme Court, in a judgment entered on November 22, 2006, declared that the August 26, 2002 collision had been a staged accident; that the insurance policy at issue is null and void with regard to any claim arising out of that collision; and that State Farm has no duty to provide no-fault benefits to the assignor herein and the other individual defendants. Defendant then moved in the Civil Court for an order dismissing the complaint on several grounds, including a lack of coverage due to a staged accident, as previously determined by the Supreme Court. In opposition, plaintiff argued that it did not have a “full and fair” opportunity to litigate the declaratory judgment action. By order entered February 20, 2019, the Civil Court granted defendant’s motion, finding that plaintiff’s claim is barred under the doctrine of collateral estoppel.

“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]). As the declaratory judgment was obtained on default and not actually litigated on the merits in the Supreme Court, there is no identity of issues between the present action and the prior determination in the declaratory judgment action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Matter of Hereford Ins. Co. v McKoy, 160 AD3d 734, 736 [2018]; 47 Thames Realty, LLC v Rusconie, 85 AD3d 853, 853 [2011]). Moreover, as plaintiff commenced this action in 2003 as assignee of the eligible injured person, plaintiff and its assignor were not in privity when the declaratory judgment action was commenced in 2005. Consequently, contrary to the determination of the Civil Court, plaintiff’s action is not barred under the doctrine of collateral estoppel.

As the Civil Court did not address the alternate grounds asserted by defendant in its motion seeking dismissal of the complaint, the matter must be remitted to the Civil Court for a determination of those remaining grounds (see Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also McElroy v Sivasubramaniam, 305 AD2d 944 [2003]).

Accordingly, the order is reversed, the branch of defendant’s motion seeking dismissal of the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel is denied and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

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

Decided on February 5, 2021

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

Kopelevich & Feldsherova, P.C. (David Landfair 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 (Robin Kelly Sheares, J.), dated May 3, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion to disqualify defendant’s law firm from representing defendant in this action.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to disqualify the law firm representing defendant, pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7, on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.

Plaintiff’s contention that defendant failed to make a prima facie showing of its entitlement to summary judgment because defendant did not show that it had timely mailed “prescribed forms” upon learning of the accident (see 11 NYCRR 65-3.4) lacks merit, as such a showing is not part of an insurer’s prima facie burden when seeking summary judgment on the ground that a provider or the provider’s assignor failed to appear for duly scheduled EUOs (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Plaintiff’s contention that defendant’s law firm should be disqualified based on the attorney-witness rule lacks merit for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 5, 2018. The order granted defendant’s motion to vacate an order of that court (Reginald A. Boddie, J.) entered April 23, 2012 which granted plaintiff’s prior unopposed motion for summary judgment and, upon such vacatur, to dismiss plaintiff’s motion and for summary judgment dismissing the complaint.

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

Plaintiff commenced this action on July 23, 2010 to recover assigned first-party no-fault benefits for services provided to Quintero Nathaniel, who was allegedly injured in a motor vehicle accident on November 23, 2009. On August 12, 2011, plaintiff moved for summary judgment. Under an adjournment stipulation executed by the parties’ counsel, opposition by defendant, 21st Century Insurance Company (21st Century), to plaintiff’s motion was to be served on or before January 23, 2012, and the motion was adjourned to April 23, 2012. Defendant failed to oppose the motion. By order entered April 23, 2012, the Civil Court (Reginald A. Boddie, J.) granted plaintiff’s motion, finding, among other things, that defendant had failed to appear for the calendar call on the return date of the motion. There is no indication that a judgment has been entered pursuant to the April 23, 2012 order.

In May 2012, defendant moved to vacate the April 23, 2012 order and, upon such vacatur, to dismiss plaintiff’s motion for summary judgment and to grant summary judgment to defendant dismissing the complaint on the ground, among others, that defendant had a reasonable excuse for failing to oppose plaintiff’s motion, in that, before the return date of plaintiff’s motion, the action had been stayed by an order of the Supreme Court, Nassau County, dated December 19, 2011, in a declaratory judgment action. Plaintiff opposed defendant’s motion in the Civil Court. [*2]By order entered July 5, 2018, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion and dismissed the complaint with prejudice. As noted by the Civil Court, defendant’s motion had been adjourned numerous times from 2012 until it was heard in 2018. The Civil Court took judicial notice of a judgment that had been entered on February 4, 2016 in the Supreme Court upon a prior order of the Supreme Court, granting 21st Century’s motion for summary judgment and declaring that the November 23, 2009 accident, among other named collisions, was intentional, that 21st Century has no duty to provide coverage for any no-fault claim in connection with the November 23, 2009 collision, and that the insurance policy at issue was null and void.

Defendant sufficiently established a reasonable excuse for its default (see CPLR 5015 [a] [1]) in opposing plaintiff’s motion in the Civil Court by demonstrating that a stay issued by the Supreme Court in its December 19, 2011 order was in effect when defendant’s opposition papers would have been due pursuant to the parties’ briefing stipulation, and that the stay remained in effect on the adjourned date of plaintiff’s motion.

With respect to a potentially meritorious defense to the action, the Civil Court properly found that, by virtue of the Supreme Court declaratory judgment, dated February 4, 2016, of which the Civil Court took judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2005]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), there has been a conclusive determination of the merits of the claim in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). Consequently, in light of the declaratory judgment, defendant’s motion in the Civil Court was properly granted under the doctrine of res judicata (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. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; 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]).

Accordingly, the order is affirmed.

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