[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Short & Billy, P.C. (Andrew S. Midgett, Skip Short, and Greenberg Traurig, New York, NY [James W. Perkins], of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 8, 2020. The order, insofar as appealed from, granted that branch of the defendant’s motion which was to disqualify the plaintiff’s counsel, The Law Office of Jason Tenenbaum, P.C.

Ordered that the order is affirmed insofar as appealed from, with costs.

In 2019, the plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages. The principal of nonparty The Law Office of Jason Tenenbaum, P.C., counsel for the plaintiff (hereinafter counsel for the plaintiff), had previously represented the defendant in hundreds of no-fault actions. The defendant moved, among other things, to disqualify counsel for the plaintiff from representing the plaintiff in this action based upon Tenenbaum’s prior representation of the defendant. In an order entered December 8, 2020, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was to disqualify counsel for the plaintiff. The plaintiff appeals. We affirm.

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” (Delaney v Roman, 175 AD3d 648, 649 [2019] [internal quotation marks omitted]; see Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]). Although a party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right, that right “will not supersede a clear showing that disqualification is warranted” (Matter of Marvin Q., 45 AD3d 852, 853 [2007]; see Scopin v Goolsby, 88 AD3d 782, 784 [2011]). “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and . . . opposing [counsel], (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Delaney v Roman, 175 AD3d at 649 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety (see Delaney v Roman, 175 AD3d at 649; Janczewski v Janczewski, 169 AD3d 773, 774 [2019]).

[*2] Here, the defendant established that counsel for the plaintiff had a prior attorney-client relationship with the defendant, that the issues involved in his prior representation of the defendant were substantially related to the issues involved in his firm’s current representation of the plaintiff, and that the interests of the plaintiff and the defendant were materially adverse (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.9; Delaney v Roman, 175 AD3d at 650).

Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to disqualify counsel for the plaintiff from continuing to represent the plaintiff in this action. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Short & Billy, P.C., New York, NY (Andrew S. Midgett and Christopher O’Donnell of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 1, 2020. The order denied that branch of the plaintiff’s motion which was to compel discovery without prejudice to renew.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages arising out of a 2016 motor vehicle accident. The plaintiff served discovery demands on the defendant. Thereafter, following the defendant’s responses, in 2020, the plaintiff moved, among other things, to compel the defendant to respond to the discovery demands. In an order entered December 1, 2020, the Supreme Court denied that branch of the plaintiff’s motion without prejudice to renew. The court determined that the motion papers were missing copies of the discovery demands served on the defendant and details about what discovery remained outstanding. The plaintiff appeals.

“ ’Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ ” (Matter of Metro-North Train Acc. of Feb. 3, 2015, 178 AD3d 929, 930 [2019], quoting Morales v Zherka, 140 AD3d 836, 836-837 [2016]; see Honghui Kuang v MetLife, 159 AD3d 878, 881 [2018]). CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The phrase ‘material and necessary’ should be ‘interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ” (Friel v Papa, 56 AD3d 607, 608 [2008], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised” (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518 [2001]; see McBride v City of New York, 208 AD3d 579, 580 [2022]).

[*2] Contrary to the plaintiff’s contention, the Supreme Court properly denied, without prejudice, that branch of his motion which was to compel discovery. The motion papers failed to include copies of the discovery requests served on the defendant or a list of the discovery that remained outstanding.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff’s motion without prejudice to renew. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

[*1]

Hinman, Howard & Kattell, LLP, Binghamton (Jeanette N. Warren of counsel), for appellant.

Mura Law Group, PLLC, Buffalo (Brendan S. Byrne of counsel), for respondent.

Pritzker, J. Appeal from an order of the Supreme Court (Oliver N. Blaise III, J.), entered June 16, 2022, in Broome County, which denied plaintiff’s motion for, among other things, a declaration that defendant is required to pay plaintiff’s medical expenses up to her policy limit.

In September 2020, the vehicle plaintiff was driving was rear-ended by a vehicle driven by Jane Mei and owned by Tak-Wing Tam, causing plaintiff multiple injuries and requiring her to undergo cervical fusion. Plaintiff is insured by defendant and had no-fault coverage up to $50,000 and additional personal injury protection (hereinafter APIP) coverage up to $50,000. Plaintiff thereafter settled with both Tam’s and Mei’s insurance carriers for $100,000 each, the maximum each policy permitted, and defendant paid plaintiff’s medical expenses up to the policy limit of her no-fault coverage. In addition, defendant paid plaintiff $7,292.85 of her APIP coverage, but refused to pay out any additional money under the APIP coverage and informed plaintiff that it had placed a lien on the $7,292.85 that had been paid out. On February 28, 2022, plaintiff commenced the instant action alleging that her settlement was not sufficient to compensate her for the injuries she sustained and, therefore, seeking a declaratory judgment that defendant was required to pay the remainder of her APIP coverage for her medical expenses and that defendant had no right to a lien on the $7,292.85 APIP already paid to plaintiff. Only two days later, plaintiff filed an order to show cause seeking the same relief sought in the complaint. Defendant subsequently filed an answer as well as opposition to the order to show cause arguing, among other things, that the evidence did not support the sought-after declaratory relief. After a brief oral argument, Supreme Court, apparently treating plaintiff’s order to show cause as a motion for summary judgment, denied plaintiff’s request for declaratory judgment in both respects, finding that she had failed to show that she was entitled to further APIP benefits and that defendant was not precluded from asserting a lien on the APIP benefits already paid to plaintiff, and dismissed the complaint. Plaintiff appeals.

Initially, we discern no error with Supreme Court treating plaintiff’s order to show cause, filed two days after commencement of the action, essentially as a motion for summary judgment seeking ultimate relief (see Matter of Estate of Jason v Herdman, 70 AD3d 1382, 1382 [4th Dept 2010]; Matter of Rine v Higgins, 244 AD2d 963, 964 [4th Dept 1997]). However, “[a] motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” (Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [4th Dept 2005] [internal quotation marks and citations omitted]; see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d 1353, 1354 [3d Dept 2018]; Peterson v State of New York, 130 AD2d 813, 814 [3d Dept 1987]). “Particularly in an [*2]action for declaratory judgment, all of the material facts and circumstances should be fully developed before the respective rights of the parties may be adjudicated” (Matter of Rine v Higgins, 244 AD2d at 964 [internal quotation marks, brackets and citation omitted]). Accordingly, rather than reaching the merits, Supreme Court should have determined that plaintiff was barred from seeking summary judgment at the time and denied the motion as premature (see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d at 1354-1355; Lindbergh v SHLO 54, LLC, 128 AD3d 642, 644 [2d Dept 2015]). That defendant answered and issue was joined prior to the return date of the order to show cause does not change this determination (see generally Matter of Rine v Higgins, 244 AD2d at 964). Indeed, a review of the record reveals that there are issues to be adjudicated in this action, particularly as to defendant’s right to subrogration, what portion of plaintiff’s settlement is for pain and suffering—and thus not subject to subrogation—and whether plaintiff has been made whole. Thus, while denial of plaintiff’s motion was warranted, the basis should have been that the motion was premature. Accordingly, the complaint must be reinstated and the matter remitted for further proceedings.

Garry, P.J., Aarons, Ceresia and Fisher, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as dismissed the complaint; complaint reinstated; and, as so modified, affirmed.

[*1]

Roman Kravchenko, Melville, for appellant.

Larkin Farrell LLC, New York (Anthony R. Troise of counsel), for respondent.

Order, Supreme Court, Bronx County (Marissa Soto, J.), entered January 27, 2023, which granted petitioner American Transit Insurance Company’s (American Transit) petition to vacate the award of a master arbitrator, dated August 11, 2022, affirming a lower arbitrator’s award, dated May 26, 2022, in favor of respondent Smart Choice Medical P.C. (Smart Choice) in the amount of $1,211.48, vacated the arbitration award, and denied Smart Choice’s request for attorney fees, unanimously affirmed, without costs.

“Where, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason” (Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-437 [1st Dept 2019]; see also Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999], lv denied 93 NY2d 809 [1999]).

“When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it constitutes a breach of a condition precedent vitiating coverage” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 442 [1st Dept 2018] [internal quotation marks omitted]). Like Hereford, American Transit established its entitlement to judgment as a matter of law by submitting the letters sent to the claimant notifying him about the date, time, and location of the initially scheduled IME, a second scheduled IME, a third scheduled IME, and an affidavit of mailing for these letters. American Transit also submitted affidavits from the medical professional assigned to conduct the scheduled IMEs, who stated that the claimant failed to appear at the date and time of his appointment. This principle is well-established law in this Court (see e.g. Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C., 181 AD3d 429, 429 [1st Dept 2020]; Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 175 AD3d 1131, 1131-1132 [1st Dept 2019]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]).

Generally, if a valid claim or portion of a claim for no-fault benefits is overdue, Insurance Law § 5106 (a) entitles “the claimant . . . to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations” (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 172 AD3d 598, 598 [1st Dept 2019]). However, because we find Smart Choice’s claim invalid as a matter of law, it is not entitled to such fees. Concur—Oing, J.P., Singh, Moulton, Scarpulla, Shulman, JJ.

[*1]

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Jennifer B. Ettenger of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, NY (Damin J. Toell of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 16, 2020. The order affirmed an order of the Civil Court of the City of New York, Kings County (Robin K. Sheares, J.), entered July 20, 2018, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiff’s cross-motion for summary judgment on the complaint.

Ordered that the order dated October 16, 2020, is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiff’s cross-motion for summary judgment on the complaint is denied, and the order entered July 20, 2018, is modified accordingly.

The plaintiff, a medical provider, commenced this action, as assignee of no-fault insurance benefits, against the defendant insurer for a judgment in the amount of its claims for medical services provided to the insured. The defendant moved for summary judgment dismissing the complaint, arguing that it was not obligated to pay the no-fault benefits to the plaintiff because the insured assignor failed to appear at three scheduled examinations under oath (hereinafter EUOs). The plaintiff cross-moved for summary judgment on the complaint. By order entered July 20, 2018, the Civil Court denied the defendant’s motion and granted the plaintiff’s cross-motion, and, by order dated October 16, 2020, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed. The defendant appeals, by permission, from the order dated October 16, 2020.

“Upon receipt of one or more of the prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request ‘any additional verification required by the insurer to establish proof of claim’ ” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007], quoting 11 NYCRR 65-3.5 [b]). “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b] [emphasis added]). “The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath[*2]. . . is a material breach of the policy, precluding recovery of the policy proceeds” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020] [internal quotation marks omitted]; see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing that its letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at the scheduled EUOs, that it timely and properly followed up pursuant to 11 NYCRR 65-3.6 (b), and that it ultimately issued a timely and proper denial of the claims following the insured’s failure to appear at the last scheduled EUO (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; 65-3.8 [a]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 756; Interboro Ins. Co. v Clennon, 113 AD3d at 597). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted, and the plaintiff’s cross-motion for summary judgment on the complaint should have been denied.

The defendant’s remaining contention need not be reached in light of our determination. Barros, J.P., Iannacci, Miller and Zayas, JJ., concur.

[*1]

The Rybak Firm, PLLC, New York, NY (Damin J. Toell of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants First Spine Chiropractic of NY, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., Jules Francois Parisien, Longevity Medical Supply, Inc., and NYC Madison Avenue Medical, P.C., appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered May 1, 2020. The order and judgment, insofar as appealed from, granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, and declared that certain motor vehicle collisions were intentional and that the plaintiffs are not obligated to pay certain no-fault claims related to those collisions.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

In August 2018, the plaintiffs, both automobile insurance carriers, commenced this action, inter alia, for a judgment declaring that certain collisions involving insured motor vehicles were intentional acts and that they therefore had no duty to pay no-fault claims relating to those collisions. On July 29, 2019, the Supreme Court entered a judgment on default against a number of the defendants, including the insured individuals, and declared, among other things, that the collisions were intentional acts, and the plaintiffs had no duty to pay related no-fault claims.

Thereafter, the plaintiffs moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants First Spine Chiropractic of NY, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., Jules Francois Parisien, Longevity Medical Supply, Inc., and NYC Madison Avenue Medical, P.C. (hereinafter collectively the appellants). In an order and judgment entered May 1, 2020, the Supreme Court, inter alia, granted that branch of the plaintiffs’ motion and declared that the collisions were intentional acts and that the plaintiffs were not obligated to pay the no-fault claims the appellants submitted to them relating to the collisions. This appeal ensued.

The appellants failed to demonstrate that the plaintiffs’ motion was premature since they failed to identify any evidence within the plaintiffs’ exclusive control which was essential to their defense. Instead, the appellants were merely hopeful that further discovery would lead to evidence which would support their opposition to the motion (see CPLR 3212 [f]; Santiago v City [*2]of New York, 191 AD3d 715 [2021]; Blake v City of New York, 148 AD3d 1101 [2017]). Accordingly, the appellants failed to establish that the motion should be denied on that basis.

An intentionally caused or staged vehicular collision is not a covered accident under an insurance policy (see National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2022]). When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third parties (see Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2014]). Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by proffering evidence that the collisions were intentional. Specifically, the plaintiffs proffered evidence that the insured individuals procured the subject insurance policies fraudulently and that the collisions occurred under similar circumstances. In both collisions, the insured individuals were not in the insured vehicles at the relevant time, the insured vehicles struck a UPS truck while exiting a parking space, the individuals involved in the collisions were all closely interrelated, and all of the individuals allegedly injured in the collisions sought treatment from the same healthcare providers. In opposition, the appellants failed to raise a triable issue of fact.

The appellants also failed to establish that the plaintiffs’ evidence was inadmissible. The plaintiffs met their burden to support their motion with admissible evidence by including affidavits from witnesses personally knowledgeable about material facts (see CPLR 3212 [b]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). The witnesses also laid appropriate foundations for certain business records (see CPLR 4518 [a]; U.S. Bank N.A. v Zakarin, 208 AD3d 1275 [2022]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the appellants and declared that the collisions were intentional and the plaintiffs were not obligated to pay no-fault claims relating to the collisions.

In light of the foregoing, we need not reach the appellants’ remaining contention. Brathwaite Nelson, J.P., Rivera, Ford and Taylor, JJ., concur.

[*1]

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

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered August 27, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment declaring that plaintiff has no duty to defendants-appellants to pay no-fault claims based on the injured party’s failure to appear for examinations under oath (EUO), and permanently stayed any further action involving the injured party, unanimously reversed, on the law, without costs, the motion denied and the declaration and stay vacated.

Although plaintiff timely requested an EUO and subsequently issued a timely denial (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]), the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer (American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]).

Plaintiff’s argument that the opposing defendants waived any objection to the reasonableness of EUO request is unavailing (Country-Wide, 205 AD3d at 474). Concur—Kapnick, J.P., Kern, Gesmer, Moulton, Higgitt, JJ.

[*1]

Jaffe & Asher LLP, White Plains (Marshall T. Potashner of counsel), for appellants.

Eppinger, Reingold & Korder, Larchmont (Mitchell L. Korder of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered September 21, 2022, which denied plaintiffs’ motion pursuant to CPLR 602 (b) to consolidate eight Civil Court actions with this action, unanimously reversed, on the law, without costs, and plaintiffs’ motion granted.

This action arises out of insurance claims based on an accident on December 30, 2020 in which defendant Melito Bonilla, while a passenger in a parked car, was injured when the car was struck by another vehicle. Each of the claims is under an insurance policy issued by plaintiffs that required Bonilla to appear for an examination under oath (EUO). Plaintiffs Liberty Mutual Insurance Company and LM General Insurance Company commenced this action on December 28, 2021, seeking a declaratory judgment, alleging that they do not owe no-fault coverage for medical fees in connection to Bonilla’s injuries because he failed to appear for an EUO.

After the action was commenced, two of Bonilla’s medical providers, Bay Ridge Chiropractic PC and Hudson Valley Chiro & Rehab PC, both of which are defendants in this action, brought eight actions, all in Richmond County Civil Court, seeking payment from Liberty for treatment of Bonilla’s alleged injuries. Liberty asserts that the same defense applies in each case, namely that it is not required to cover the injuries because Bonilla failed to appear for scheduled EUOs.

It was an improvident exercise of discretion to have denied plaintiffs’ motion to consolidate (see Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 340 [1st Dept 2006]). The issue of whether Bonilla failed to submit to the EUO, and whether such failure entitles Liberty to disclaim coverage for his alleged injuries and treatment, would affect the outcome of each of the cases, and Liberty would risk inconsistent verdicts and multiple trials if the Civil Court actions are not consolidated with this one (see Phoenix Garden Rest. v Chu, 202 AD2d 180, 180-181 [1st Dept 1994]). Moreover, in opposing plaintiffs’ motion, defendants have not argued that they would be prejudiced. Concur—Webber, J.P., González, Scarpulla, Rodriguez, JJ.

[*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 (Lyle E. Frank, J.), entered on or about February 3, 2022, which granted petitioner Country-Wide Insurance Company’s (Country-Wide) petition to vacate a master arbitrator’s award, dated September 20, 2021, which affirmed a lower arbitrator’s award, dated May 31, 2021, in favor of respondent Refill Rx Pharmacy, Inc, as assignee of Kimberly Rosas (Refill) and against Country-Wide, in the amount of $2,715.48, and denied respondent’s cross motion for attorneys’ fees, unanimously affirmed, without costs.

Vacatur of the award was warranted under CPLR 7511 (b) (1) (iii) as the lower arbitrator exceeded his power by issuing an award exceeding the contractual limit for the subject no-fault coverage policy of $50,000, and the master arbitrator erred in affirming. Once a no-fault insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). An arbitrator’s award directing payment beyond the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; see also Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [1st Dept 2020]). Country-Wide was not precluded from raising the issue of policy exhaustion before the court, even if it was not before the arbitrators in the underlying arbitration (Matter of Ameriprise Ins. Co. at 564).

Country-Wide submitted an affidavit from its No-Fault Litigation/Arbitration supervisor, attesting that the instant claims file of Refill’s assignor, Ms. Rosas, reflects that the policy has been exhausted beyond its $50,000 limit. The affidavit also contains a ledger reflecting the dates that claims by various medical providers were paid, which exhausted Ms. Rosas’ policy. Thus, Country-Wide’s submissions showed that the policy was properly exhausted prior to the underlying arbitration (see 11 NYCRR 65-3.15).

In view of the foregoing, Refill is not entitled to the attorneys’ fees it requested (see 11 NYCRR 65-4.10 [j] [4]).

We have considered Refill’s remaining arguments and find them unavailing. Concur—Kapnick, J.P., Friedman, Kennedy, Mendez, Shulman, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Michael I. Kroopnick of counsel), for appellants.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondents.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered December 8, 2021, which, to the extent appealed from as limited by the briefs, denied defendants All City Family Healthcare, Aron Rovner, MD, PLLC, Averroes Physical Therapy PC, Burke Physical Therapy PC, Cavallaro Medical Supply, East 19 Medical Supply Corp., JSJ Anesthesia Pain Management PLLC, Jules F. Parisien, Longevity Medical Supply, Inc., LR Medical PLLC, Metro Pain Specialists, PC, Nova Medical Diagnostic, P.C., CMA Psychology, P.C., Danimark Physical Therapy PC, Fairpoint Acupuncture PC, and NYEEQASC, LLC’s (the Rybak defendants) motion to dismiss the complaint or, alternatively, to sever the claims, unanimously affirmed, without costs. Order, same court and Justice, entered December 8, 2021, which denied the Rybak defendants’ motion for a protective order, unanimously affirmed, without costs. Appeal from order, same court (Fidel E. Gomez, J.), entered June 14, 2022, which denied the Rybak defendants’ motion to sever the claims pursuant to the law of the case doctrine, unanimously dismissed, without costs, as academic.

On a motion to dismiss a declaratory judgment action for failure to state a cause of action, “the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him” (Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1st Dept 1969]). Here, plaintiffs stated causes of action for declaratory judgment. Contrary to the Rybak defendants’ contention, plaintiffs need not allege a proper claim for fraud in the complaint. Further, plaintiffs were not merely seeking an advisory opinion. Rather, their request for a declaration regarding the eligibility of defendants to recover no-fault benefits under the relevant policies amounts to a justiciable controversy sufficient to render declaratory judgment (State Farm Mut. Auto. Ins. Co. v Anikeyeva, 89 AD3d 1009, 1010-1011 [2d Dept 2011]).

The court providently exercised its discretion in declining to sever plaintiff’s claims into separate actions. Generally, “[t]o avoid the waste of judicial resources and the risk of inconsistent verdicts, it is preferable for related actions to be tried together” (Rothstein v Milleridge Inn, 251 AD2d 154, 155 [1st Dept 1998]). Although the Rybak defendants’ severance arguments carry some weight, after consideration of all relevant factors, including the potential prejudice that would be suffered by plaintiffs in having to litigate 32 separate actions involving many of the same parties and witnesses, the court properly declined to sever the claims (see Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569, 569-570 [2d Dept 1987]; cf. Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185, 185 [1st Dept 2004]). In view of the foregoing, the appeal from the order denying the Rybak defendants’ second motion to sever pursuant [*2]to the law of the case doctrine is dismissed as academic.

The court properly declined to dismiss the claims which had also been previously asserted by the Rybak defendants in separate Civil Court actions as Civil Court cannot grant the declaratory relief that plaintiffs seek here (see State Farm Fire & Cas. Co. v Jewsbury, 169 AD3d 949, 950-951 [2d Dept 2019]).

The court providently exercised its discretion in declining to grant the Rybak defendants a protective order to preclude plaintiffs from deposing them. Generally, a party seeking a protective order bears the initial burden of showing either that the discovery sought is irrelevant or that it is “obvious the process will not lead to legitimate discovery” (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Where a party seeking a protective order fails to “substantiate their conclusory claims,” the motion must be denied (Ocean to Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265, 266 [1st Dept 1988]). Here, the Rybak defendants did not meet their initial burden, as they simply asserted, in conclusory fashion, that they had no knowledge of the automobile accidents and did not witness the accidents, and thus could not attest to whether they had been staged (see id.; City Wide Social Work v NY Cent. Mut. Fire Ins. Co., 20 Misc 3d 134[A], 2008 NY Slip Op 51470[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The Rybak defendants’ affirmative defenses also support plaintiffs’ need to depose them. Concur—Kern, J.P., Kennedy, Scarpulla, Pitt-Burke, Higgitt, JJ.