Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 27, 2014. The order denied plaintiff’s motion to vacate a prior order of the same court (Pamela L. Fisher, J.) entered November 21, 2012, which granted, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 27, 2014 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 of lack of medical necessity for the services at issue. Although the parties entered into a stipulation adjourning defendant’s motion and setting forth dates for the submission of opposition and reply papers, plaintiff did not oppose defendant’s motion. By order entered November 21, 2012, the Civil Court granted defendant’s motion “with no opposition” and dismissed the complaint with prejudice. Defendant served the order with notice of entry on November 29, 2012. Thereafter, on June 7, 2013, plaintiff, asserting law office failure, moved to vacate the November 21, 2012 order, and, upon vacatur, to deny defendant’s motion for summary judgment. Defendant opposed plaintiff’s motion. Plaintiff appeals from an order of the Civil Court entered March 27, 2014 denying plaintiff’s motion.

The Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion, in view of the almost seven-month delay in moving to vacate the order and plaintiff’s failure to establish a reasonable excuse for its default (see CPLR 5015 [a]). A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Queens-Roosevelt Med. Rehab., P.C. v Alea Care of Gab Robins Ins. Co., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff’s claim of law office failure was conclusory and unsubstantiated, and, under the circumstances presented, did not constitute a reasonable excuse for the default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90; Queens-Roosevelt Med. Rehab., P.C., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U]). Consequently, it is unnecessary to determine whether plaintiff demonstrated the existence of a potentially meritorious opposition to defendant’s [*2]summary judgment motion (see Herrera, 100 AD3d at 963; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

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

Decided on February 22, 2016

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

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 8, 2008. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, among other things, that plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, finding that the affidavit of plaintiff’s president and medical biller was insufficient to establish that plaintiff’s claim forms were admissible as business records. An appeal by plaintiff ensued, and by decision and order entered October 6, 2009, this court affirmed the order of the District Court. Thereafter, plaintiff moved for leave to renew its motion based upon a change in the law with respect to the requirements for the establishment by a plaintiff provider of its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). We note that, while plaintiff did not make its motion until 2014, the motion is not untimely since a final judgment has not been entered (see Dinallo v DAL Elec., 60 AD3d 620 [2009]; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2000]).

It is now settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits [is] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). Contrary to the determination of the District Court, plaintiff was not required to establish, as part of its prima facie case, that its claim forms were admissible for the truth of the matters asserted therein pursuant to CPLR 4518 (see Viviane Etienne Med. Care, P.C., 25 NY3d 498). A review of the record before us shows that plaintiff made its prima facie showing and, in opposition, defendant failed to raise a triable issue of fact. With respect to the $802 claim submitted by plaintiff as assignee of Darwin Jimenez, defendant failed to establish that its follow-up notice scheduling an examination under oath (EUO) had been timely mailed (see 11 NYCRR 65-3.6 [*2][b]). Furthermore, with respect to the $1,277 and $995 claims submitted by plaintiff as assignee of Gilberto Estevez, while defendant’s papers reflect that Estevez appeared for an EUO on July 30, 2003, defendant’s own submissions showed that defendant did not deny those claims until October 1, 2003.

Consequently, defendant failed to demonstrate that it had tolled the time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defenses (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), that Jimenez had failed to appear for an EUO, and that the EUO testimony of Estevez had failed to establish proof of the $1,277 and $995 claims.

Accordingly, the order is reversed and plaintiff’s motion for summary judgment is granted.

The decision and order of this court entered herein on October 6, 2009 (25 Misc 3d 128[A], 2009 NY Slip Op 52068[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decided on February 18, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

Defendant’s motion for summary judgment dismissing this first-party no-fault action on the ground of lack of medical necessity should have been denied. The independent medical examination (IME) report of defendant’s chiropractor/acupuncturist, one Antoinette Perrie, was not in admissible form and should not have been considered. The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106 (see Walker v Village of Ossining, 18 AD3d 867, 868 [2005]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Nor was the report shown to have been properly “sworn to” before a notary or other authorized official (see Hartley v White, 63 AD3d 1689, 1690 [2009]; Feggins v Fagard, 52 AD3d 1221, 1223 [2008]; see also Gleason, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C2106:4. P 609-610).

Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decided on February 5, 2016

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

Decided on February 5, 2016

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

Decided on February 5, 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, Queens County (Maureen A. Healy, J.), entered September 3, 2013. The order granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In April 2012, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, Balgobin Manoo, who had allegedly sustained injuries in a motor vehicle accident which had occurred on November 14, 2011. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, New York County, against Manoo, plaintiff and other providers, seeking a declaration that the defendants therein were not entitled to no-fault benefits as a result of the November 14, 2011 accident involving Manoo, on the ground that Manoo had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled examinations under oath (EUOs). Neither plaintiff nor Manoo appeared or served an answer in the Supreme Court declaratory judgment action.

In November 2012, plaintiff moved in this action for summary judgment. In June 2013, defendant cross-moved in this action for summary judgment dismissing the complaint based upon Manoo’s failure to appear at scheduled EUOs. In addition to submitting various affidavits and documents in support of the cross motion, defendant submitted an affirmation of defense counsel which stated that defendant had made a motion for the entry of a default judgment against plaintiff and Manoo in the Supreme Court declaratory judgment action, which motion was unopposed, and that defendant was expecting a decision in its favor. Upon receipt of a decision in that action, defendant reserved its right to supplement its cross motion with that decision or to include the decision with its reply affirmation. Approximately one week later, plaintiff submitted an affirmation in opposition to defendant’s cross motion, without mentioning the declaratory judgment action. In August 2013, defense counsel submitted a reply affirmation, noting that, on July 8, 2013, an order had been entered on default in the Supreme Court declaratory judgment action declaring that plaintiff herein and its assignor had no right to be reimbursed for services rendered to the assignor and that defendant herein had no obligation to provide coverage for no-fault claims with respect to the accident in question. Plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion, based on the Supreme Court order, and dismissed the complaint.

Plaintiff argues that by failing to plead collateral estoppel or res judicata as affirmative defenses in its answer, defendant waived those defenses (see CPLR 3018 [b]). Initially, we note [*2]that defendant’s failure to raise the affirmative defenses of collateral estoppel or res judicata in its answer was understandable and excusable since defendant had no reason to assert these defenses before July 2013, when the Supreme Court entered the order in the declaratory judgment action. In any event, a waiver will not result if a defendant’s failure to plead a matter affirmatively does not take the adverse party by surprise (see e.g. Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see also Rogoff v San Juan Racing Assn., 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]). Indeed, “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see also Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Allen v Matthews, 266 AD2d 782 [1999]).

Defense counsel’s affirmation in support of defendant’s cross motion (which alerted plaintiff that an order in the declaratory judgment action was imminent) as well as the reply papers (which included a complete set of pleadings, motion papers and the order in the declaratory judgment action) apprised plaintiff that defendant was asserting the affirmative defenses of collateral estoppel and res judicata based on the declaratory judgment action, and plaintiff chose not to address this issue, either in opposition to defendant’s cross motion or by way of surreply. Nor does the record indicate that there was any prejudice to plaintiff.

In any event, this court may take judicial notice of undisputed court records and files, including the order in the Supreme Court declaratory judgment action (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). Having done so, we find that the present action is barred under the doctrine of res judicata, for the reasons stated in Renelique as Assignee of Balgobin Manoo v State-Wide Ins. Co. (__ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-2314 Q C], decided herewith).

Plaintiff’s remaining contentions on appeal are without merit.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 3, 2013. The order, upon, in effect, treating defendant’s motion to dismiss the complaint as one for summary judgment dismissing the complaint, granted the motion.

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

In May 2012, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident which had occurred on November 14, 2011. Issue was joined in July 2012. Subsequently, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (5), contending that plaintiff’s cause of action was barred by virtue of an order entered on July 8, 2013 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that plaintiff herein and its assignor had no right to be reimbursed for services rendered to the assignor and that defendant herein had no obligation to provide coverage for no-fault claims with respect to the accident in question. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.

At the outset, we note that although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), it was made after issue was joined (see generally CPLR 3211 [e]). In these circumstances, the CPLR requires the court to give “adequate notice to the parties” that it will treat defendant’s motion to dismiss as one for summary judgment (CPLR 3211 [c]). Here, however, an exception to the notice requirement was applicable, since defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]). Consequently, it was proper for the Civil Court to, in effect, 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.)

In light of the July 8, 2013 Supreme Court order, the present action is barred under the doctrine of res judicata (see Flushing Traditional Acupuncture P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; 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, 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 Supreme Court order (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Moreover, the Supreme Court’s order is a conclusive final [*2]determination, notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 658, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

Plaintiff’s remaining contentions are not properly before this court, as they were raised for the first time on appeal.

Accordingly, the order is affirmed.

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