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Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 24, 2015

APPEARANCES OF COUNSEL

Rhonda H. Barry, Jericho, and Thomas Torto, New York City, for appellant.

Zara Javakov, Esq., P.C., Brooklyn Zara Javakov of counsel), for respondent.

Ordered that the order entered January 10, 2013 is reversed, without costs, and the branch of defendant’s motion seeking to resettle the order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted; and it is further ordered that, on the court’s own motion, the decision and order on motion of this court dated May 1, 2012 (see 2012 NY Slip Op 72730[U] [2012]), which dismissed the appeal from the order of the Civil Court entered September 15, 2010, is recalled and vacated, and that appeal is reinstated under appeal No. 2011-192 K C; and it is further ordered that appeal No. 2011-192 K C shall be perfected within 30 days of the date of this decision and order; and it is further ordered that in the event that appeal is not perfected within 30 days of the date of this decision and order, the court, on its own motion, may dismiss the appeal, or respondent may move to dismiss the appeal on three days’ notice, and may serve such application in person; and it is further ordered that respondent, if it be so advised, may serve and file a respondent’s brief within 21 days of the date that the appellant’s brief is due to be filed pursuant to this decision and order, and appellant, if it be so advised, may serve and file a reply brief within 14 days of the date that the respondent’s brief is due to be filed pursuant to this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court, entered January 10, 2013, denying defendant’s motion to resettle so much of a prior order of the same court, entered September 15, 2010, which had decided a motion and cross motion{**52 Misc 3d at 14} for summary judgment, so as to delete a notation on that order stating that the order was made on “consent” and is “not appealable,” or for alternative relief.

At the outset, we note that, contrary to plaintiff’s argument on appeal, so much of the January 10, 2013 order as denied resettlement is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 [1982]; Bergin v Anderson, 216 App Div 844 [1926]; see also 4 NY Jur 2d, Appellate Review § 57; 10 Carmody-Wait 2d § 70:31).

In support of its motion, defendant submitted an affirmation from the attorney for defendant who had appeared on the return date of the motion and cross motion in question. That attorney attested that both he and plaintiff’s attorney had “vigorously argued” the motion and cross motion that day, and explicitly denied that the order had been made on consent. Defendant also submitted a copy of the September 15, 2010 order, apparently handed to the parties on September 15, 2010, the return date, which does not contain the “consent/not appealable” notation. Defendant further noted that all copies of the September 15, 2010 order state that it was made after oral argument. Plaintiff submitted no opposition to defendant’s motion, and, on appeal, does not dispute defendant’s factual assertions.

As defendant’s affirmed claim—that the September 15, 2010 order was not made on consent—was made on personal knowledge and was not contradicted, we find that the court should have granted the branch of defendant’s motion seeking to resettle the order so as to delete the “consent” and “not appealable” notation.

Accordingly, the order entered January 10, 2013 is reversed and the branch of defendant’s motion seeking to resettle the prior order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted. In view of the foregoing, the decision and order on motion of this court dated May 1, 2012, which dismissed defendant’s appeal from the Civil Court’s September 15, 2010 order on the ground that no appeal lies from an order entered on consent, is recalled and vacated, and that appeal is reinstated.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 29, 2013. The order, insofar as appealed from, denied plaintiff’s motion to vacate a prior order of the same court entered October 24, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 24, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, noting that the parties had entered into a stipulation, which set a schedule for serving opposition and reply papers, and declining to consider plaintiff’s late opposition to the motion. Almost 10 months later, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the October 24, 2011 default order. Defendant opposed plaintiff’s motion, and cross-moved for costs and sanctions. Plaintiff appeals from so much of an order of the Civil Court entered April 29, 2013 as denied its motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, pursuant to the parties’ stipulation. In support of plaintiff’s motion to vacate the default order, plaintiff’s attorney alleged that her late submission of an affirmation in opposition to defendant’s motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff’s attorney offered no reason for waiting almost 10 months to move to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 7, 2013. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

Plaintiff commenced this action in the Civil Court to recover assigned first-party no-fault benefits, asserting that it had provided health care services to Kashif Edwards for injuries sustained in an April 26, 2010 automobile accident, and that Edwards had assigned his benefits to plaintiff. Shortly thereafter, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff, other providers and Kashif Edwards, seeking a declaration that all of the defendants therein were not entitled to no-fault benefits as a result of the April 26, 2010 accident involving Edwards on the ground that Edwards had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled independent medical examinations. Neither plaintiff nor Edwards served an answer or otherwise appeared in the Supreme Court action. Approximately one year later, plaintiff, LMS Acupuncture, P.C., moved for summary judgment in the Civil Court. American Transit opposed the motion on the ground that LMS Acupuncture, P.C.’s Civil Court action was barred by the pending declaratory judgment action. While the Civil Court action was pending, American Transit moved in Supreme Court for, among other relief, a declaration that Kashif Edwards is not an eligible injured person entitled to no-fault benefits under the insurance policy at issue and that American Transit is not obligated to honor or pay claims submitted by Edwards’ assignees, including LMS Acupuncture, P.C., arising from the subject accident, under the insurance policy at issue. On May 8, 2013, the Supreme Court granted, on default, American Transit’s motion. By order entered June 7, 2013, the Civil Court denied LMS Acupuncture, P.C.’s motion for summary judgment, in light of the Supreme Court’s determination in the declaratory judgment action. On August 1, 2013, the Supreme Court signed a long-form order embodying its determination.

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]).

Based upon the declaratory judgment action in 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, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. [*2]Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), since the prior action was disposed of on the merits (see Abraham, 47 AD3d 855; Ava Acupuncture, P.C., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]), and the Supreme Court’s order is a conclusive final determination (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]). To hold otherwise could result in a judgment in the present action which would destroy or impair rights or interests established in the Supreme Court action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; EBM Med. Health Care, P.C., 38 Misc 3d 1). We note that any contention that the Supreme Court’s May 8, 2013 determination was not a final disposition has been rendered moot by the entry of the August 1, 2013 long-form order.

Although defendant did not cross-move for summary judgment dismissing the complaint, upon a search of the record, we find that it supports the granting of such relief as a matter of law (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Accordingly, the order of the Civil Court is affirmed, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

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

Decided on January 15, 2015

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 (Harriet L. Thompson, J.), entered March 13, 2013, deemed from a judgment of the same court entered March 27, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 13, 2013 order granting defendant’s motion for summary judgment and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted an affidavit by its claims representative, which affidavit sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Although the claims representative’s affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR 2309 (c) and Real Property Law § 299-a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect (see Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the present case, plaintiff failed to make any showing of prejudice.

Defendant denied plaintiff’s claims on the grounds that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid for the billed-for services in accordance with the fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, the affidavit executed by a fee schedule adjuster [*2]for defendant’s vendor, Managed Care Network, established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s papers failed to raise a triable issue of fact in opposition to defendant’s motion. Consequently, the Civil Court properly granted defendant’s motion and denied plaintiff’s cross motion.

Accordingly, the judgment is affirmed.

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

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated May 22, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Andrea Masley, J.), dated May 22, 2013, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claims seeking no-fault first-party benefits in the aggregate amount of $1,710.05; as modified, order affirmed, with $10 costs to defendant-appellant.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims in the total sum of $ 1,710.75, for medical supplies provided to plaintiff’s assignor on June 2, 2011 and June 22, 2011, by establishing its proper and timely mailing of the denial of claim forms at issue herein (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]), and submitting a sworn peer review report which set forth a sufficient factual basis and medical rationale for the stated conclusion that the medical supplies provided to the assignor were not medically necessary (see Triangle R. Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).

We sustain so much of the order under review as denied defendant’s motion for summary judgement dismissing plaintiff’s claim of $1,080 for medical supplies provided to plaintiff’s assignor on June 27, 2011, since defendant’s own moving papers tend to indicate that this claim was not timely denied (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 317 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1990]).

Plaintiff’s remaining arguments are either unpreserved for appellate review or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on December 31, 2014

Decided on December 30, 2014

Decided on December 22, 2014

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

Decided on December 19, 2014

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