Decided on December 29, 2016

Decided on December 16, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered February 25, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for supplies it provided to its assignor for injuries he had sustained in a motor vehicle accident on February 27, 2012, to which claim defendant assigned claim number 1126518. Prior to the commencement of this action, defendant instituted a declaratory judgment action in the Supreme Court, New York County, against plaintiff’s assignor and various medical providers, including plaintiff herein. In an order dated April 25, 2014, the Supreme Court granted, on default, the motion therein for a declaratory judgment, which order stated, among other things, “that, for the purpose of claims submitted by GABRIEL SANFORD, ACTIVE CARE MEDICAL SUPPLY CORP. . . . , defendant GABRIEL SANFORD is not an eligible injured person entitled to no-fault benefits under AMERICAN COMMERCE INSURANCE COMPANY insurance policy ACPA-000653448, Claim No.: 1126518, and [American Commerce Insurance Company] is not obligated to pay for claims seeking no-fault benefits for services or goods provided to GABRIEL SANFORD under this claim number.”

In July 2014, defendant, among other things, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the April 25, 2014 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered February 25, 2015, the Civil Court denied defendant’s motion without prejudice to renewal upon proper papers. The court found that it could not consider the Supreme Court declaratory judgment order annexed to the moving papers because defendant had not included a notice of entry for that order.

Contrary to the determination of the Civil Court, it should have reviewed and considered the Supreme Court declaratory judgment order even though defendant did not provide a notice of entry for it “in view of the binding and conclusive effect of the order” (Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc 3d 143[A], 2014 NY Slip Op 51324[U], *1 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A review of the record establishes that the instant action is barred under the doctrine of res judicata by virtue of the Supreme Court order dated April 25, 2014 (see 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]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order issued by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (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]).

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

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Appeal, on the ground of inadequacy, from a decision after inquest of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), dated January 13, 2015, and from a judgment of the same court entered April 21, 2015. The judgment, entered pursuant to the decision after inquest, upon awarding plaintiffs the principal sum of $4,491.47, together with interest, costs and disbursements, failed to award plaintiffs statutory attorney’s fees.

ORDERED that so much of the appeal as is from the decision is dismissed on the ground that no appeal lies from a decision (see UCCA 1702); and it is further,

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate Property and Casualty Insurance Company only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Plaintiffs commenced this action in October 2014 to recover assigned first-party no-fault benefits for services that had been provided from February through July 2012, and statutory attorney’s fees thereon. Defendant Allstate Property and Casualty Insurance Company (Allstate) defaulted. Plaintiffs’ counsel subsequently admitted that defendant Edzer Louis-Jean had not been served with process. Plaintiffs, in effect, moved to enter a default judgment and submitted a proposed judgment to the City Court of Yonkers. Following an inquest, the City Court awarded a default judgment to plaintiffs in the principal sum of $4,491.47, together with interest and statutory costs and disbursements. In its decision, the court noted that plaintiffs had discontinued the action as against Edzer Louis-Jean individually. The court denied the branch of plaintiffs’ motion which sought statutory attorney’s fees, finding that plaintiffs had failed to [*2]demonstrate their “statutory entitlement to attorney’s fees . . . and failed to submit a detailed affidavit” of the services rendered by plaintiffs’ counsel. A judgment was entered against defendants Allstate and Edzer Louis-Jean, awarding plaintiffs the principal sum of $4,491.47 on their claims, plus statutory interest, costs, and disbursements. Plaintiffs appeal from the decision and judgment, arguing that the court erred in failing to award them statutory attorney’s fees.

So much of the appeal as is from the decision is dismissed, as no appeal lies from a decision (see UCCA 1702). The issues raised on the appeal from the decision are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to the determination of the City Court, attorney’s fees, as sought here by plaintiffs, are not discretionary or dependent upon the actual value of the services rendered by plaintiffs’ counsel. Rather, the attorney’s fees to which plaintiffs are entitled are statutory (Insurance Law § 5106 [a]), and, pursuant to the no-fault regulations in effect at the relevant time, equaled “20 percent of the amount of first-party benefits, plus interest thereon, . . . subject to a maximum fee of $850” (11 NYCRR 65-4.6 [former (e)]; see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

In the present case, as the City Court awarded a default judgment in favor of plaintiffs for first-party no-fault benefits in the principal sum of $4,491.47, plaintiffs are entitled to the maximum statutory attorney’s fees of $850 (cf. 11 NYCRR 65-4.6 [d] [effective July 23, 2014, the maximum possible award of attorney’s fees in this type of action was increased to $1,360]). However, while the decision of the City Court recognized that plaintiffs had discontinued the action as against Edzer Louis-Jean, the judgment named both Allstate and Louis-Jean as debtors. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Kim v Schiller, 112 AD3d 671, 674 [2013]; see Green v Morris, 156 AD2d 331 [1989]). Such an inconsistency may be corrected on appeal, pursuant to CPLR 5019 (a) (see Kim, 112 AD3d at 674; Green, 156 AD2d at 331; Clifford v Nationwide Custom Servs., Inc., 51 Misc 3d 132[A], 2016 NY Slip Op 50459[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Accordingly, the judgment is reversed and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Brands, J.P., Marano and Tolbert, JJ., concur.

Decided on December 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014. The order denied defendant’s motion to vacate a prior order of the same court (Wavny Toussaint, J.) entered September 24, 2013 which, upon defendant’s default in appearing for oral argument, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint, and, upon vacatur of the September 24, 2013 order, for a finding that the complaint had been dismissed pursuant to a previously issued, self-executing conditional order or, in the alternative, for “permission to reargue” defendant’s cross motion and its opposition to plaintiff’s motion.

ORDERED that the order entered July 7, 2014 is modified by providing that the branch of defendant’s motion seeking to vacate the order entered September 24, 2013 is granted and the matter is remitted to the Civil Court for argument and determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint; as so modified, the order entered July 7, 2014 is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered July 7, 2014 which denied its motion to vacate a prior order, entered September 24, 2013, which had granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint upon defendant’s default in appearing for oral argument, and, upon vacatur, to find that the complaint had been dismissed pursuant to a previously issued, self-executing conditional order or, in the alternative, for “permission to reargue” its cross motion and its opposition to plaintiff’s motion.

In order to be entitled to vacatur of the entire order entered September 24, 2013, which was issued upon defendant’s failure to appear for oral argument, defendant was required to establish, pursuant to CPLR 5015 (a) (1), a reasonable excuse for its default, a potentially meritorious defense to plaintiff’s motion and the potential merits of the cross motion (see 1158 Props., LLC v 1158 McDonald, LLC, 104 AD3d 658 [2013]; A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, defendant’s attorney submitted an affirmation in which he explained that he had been late to the calendar call because there had been a major traffic jam due to a car accident, and that he had requested that plaintiff vacate the default upon [*2]his arrival. We find that defendant thereby established a reasonable excuse for its default (see Morales v Marma, 88 AD3d 722, 723 [2011]; Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656, 656-657 [2011]; Reices v Catholic Med. Ctr. of Brooklyn & Queens, 306 AD2d 394 [2003]). Furthermore, defendant demonstrated the existence of a potentially meritorious defense to plaintiff’s motion and the potential merits of the cross motion. Accordingly, the branch of defendant’s motion seeking to vacate the prior order should have been granted.

Defendant argues that the complaint had already been dismissed because plaintiff allegedly failed to comply with a conditional, self-executing order dated June 24, 2013. However, defendant has not given any indication that the June 24, 2013 order had been served on plaintiff. Therefore, defendant has not demonstrated that the order became binding (see CPLR 2220; All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48, 50 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Consequently, we cannot find, on this record, that the complaint had been dismissed.

In view of the foregoing, we remit the matter to the Civil Court for argument and determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order entered July 7, 2014 is modified by providing that the branch of defendant’s motion seeking to vacate the order entered September 24, 2013 is granted, and the matter is remitted to the Civil Court for argument and determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decided on December 7, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action on November 1, 2013 to recover assigned first-party no-fault benefits for medical services provided to its assignor for injuries she had allegedly sustained in a motor vehicle accident on June 12, 2011. Plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff failed to establish its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrine of res judicata. In support of its cross motion, defendant proffered an order, entered May 31, 2013, in a declaratory judgment action in the Supreme Court, New York County, that had been commenced against, among other parties, plaintiff herein and its assignor. The Supreme Court declared that the insurer is not required to pay any claims for no-fault benefits under the policy at issue with respect to an alleged accident on June 12, 2011. By order entered March 26, 2015, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the basis of the order in the declaratory judgment action. On appeal, plaintiff argues that it established its prima facie entitlement to summary judgment and that defendant failed to demonstrate that the causes of action in the present matter arose out of the same transaction as the causes of action in the Supreme Court action.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]).

“The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again” (Matter of Hunter, 4 NY3d 260, 269 [2005]). In the case at bar, the determination as to whether defendant was obligated to pay plaintiff’s claims “arises out of the same transaction, i.e., the subject accident” of June 12, 2011 (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), and involves the same insurer, medical [*2]provider and injured party as were involved in the Supreme Court declaratory judgment action. Thus, in light of the May 31, 2013 order of the Supreme Court, the instant action is barred 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]). A different result in the instant action would destroy or impair rights or interests established by the Supreme Court order (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Consequently, the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion. In view of the foregoing, we do not reach plaintiff’s remaining contention.

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decided on December 7, 2016

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 7, 2016

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

Ordered that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

Plaintiff commenced this action on May 6, 2013 to recover assigned first-party no-fault benefits for medical services that it had provided as a result of a motor vehicle accident that had occurred on May 5, 2011. The injured party, Latoya Payne, signed an assignment of benefits to plaintiff on May 6, 2011. Defendant purported to schedule an examination under oath (EUO) of the assignor to be held on July 29, 2011, and, upon the assignor’s alleged nonappearance, a follow-up EUO on September 12, 2011. Subsequent to the assignment of benefits and the scheduling of the EUOs, defendant commenced a proceeding against Latoya Payne, Tevin Jackson and two other individuals in the Supreme Court, Kings County, to compel them to appear at EUOs, asserting in the petition that they had failed to appear for two scheduled examinations. Defendant’s petition also sought declaratory relief in the event of their nonappearances at a future EUO. Plaintiff was not named as a respondent in the proceeding. The Supreme Court granted defendant’s motion, and defendant then purported to schedule a third EUO to be held on April 27, 2012. Thereafter, defendant moved in the Supreme Court, pursuant to CPLR 3215 (a), for a default judgment against Latoya Payne, Tevin Jackson and the two other individuals, and argued that they had failed to appear for the third EUO. By order dated December 5, 2012, the Supreme Court granted defendant’s motion and declared that all first-party coverage for no-fault benefits was disclaimed as to Latoya Payne and the three other individuals, or any assignee under the subject policy with respect to the motor vehicle collision at issue.{**54 Misc 3d at 56}

On August 21, 2013, defendant moved in the Civil Court for summary judgment dismissing the complaint on the grounds that defendant is not obligated to pay assigned first-party no-fault benefits to plaintiff in light of the Supreme Court order and that the assignor had failed to appear for scheduled EUOs. Plaintiff opposed the motion, arguing, among other things, that it is not bound by the declaratory judgment rendered in the Supreme Court proceeding and that defendant failed to establish that it had timely and properly scheduled EUOs. By order entered May 1, 2014, the Civil Court granted defendant’s motion. We reverse.

Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; 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]).

Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO. Thus, defendant failed to demonstrate entitlement to summary judgment dismissing the complaint on either ground.{**54 Misc 3d at 57}

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.