The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik 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 (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint with prejudice.

ORDERED that the order, insofar as appealed from, is reversed, without costs, defendant’s cross-motion for summary judgment dismissing the complaint with prejudice is denied and, upon searching the record, the complaint is dismissed without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

Plaintiff argues on appeal that the order, insofar as appealed from, should be reversed and the matter remitted to the Civil Court for consideration of what plaintiff denominated as amended opposition to defendant’s cross-motion, which the court declined to consider. The court rejected that submission as an improper sur-reply. In the alternative, plaintiff argues that defendant’s cross-motion should be denied.

Contrary to plaintiff’s contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether [*2]plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [1]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 85 Misc 3d 130[A], 2025 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Plaintiff also argues that the instant action cannot be maintained, as collateral estoppel effect should be given to an order of the Supreme Court, Nassau County, denying defendant’s motion for summary judgment in a declaratory judgment action brought by defendant in that court. However, the denial of such a motion “has no preclusive effect on this case, as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Furthermore, nothing in the record supports plaintiff’s contention that it was improper for the Civil Court to decline to consider plaintiff’s amended opposition to defendant’s cross-motion, nor does plaintiff demonstrate that consideration of the amended opposition would warrant a different outcome.

However, at oral argument, defendant noted that the denial of claim form at issue in this case was issued more than 150 days after the issuance of the initial request for verification. Thus, that denial of claim form is a nullity and, upon searching the record, we conclude that the action is premature and the complaint should be dismissed without prejudice (see Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross-motion for summary judgment dismissing the complaint with prejudice is denied and, upon searching the record, the complaint is dismissed without prejudice.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.; op 72 Misc 3d 1215[A], 2021 NY Slip Op 50750[U] [2021]), dated July 13, 2021. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action and granted the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action are granted and the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action on the ground that plaintiff failed to appear for duly scheduled examinations under oath, and granted the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action.

For the reasons stated in MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U v Nationwide Ins. (— Misc 3d —, 2025 NY Slip Op ___ [Appeal No. 2021-478 K C], decided herewith), the order (72 Misc 3d 1215[A], 2021 NY Slip Op 50750[U] [Civ Ct, Kings County 2021]), insofar as appealed from, is reversed, the branches of defendant’s motion seeking [*2]summary judgment dismissing the first through fifth causes of action are granted and the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action are denied.

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51377[U] is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross-motion for summary judgment. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and granted plaintiff’s cross-motion for summary judgment.

Defendant demonstrated that a letter scheduling an initial EUO of plaintiff had been mailed before receipt of the claims at issue, and that defendant issued timely follow-up EUO scheduling requests after each failure to appear by plaintiff, thus tolling defendant’s time to pay or deny the claims (see Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant further established that plaintiff [*2]failed to appear for each of the scheduled EUOs, and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023], revg 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant’s motion should have been granted and plaintiff’s cross-motion denied.

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

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51378[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

ORDERED that the order 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 on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross-motion for summary judgment.

Defendant established prima facie that it timely mailed initial and follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also 11 NYCRR 65-3.8 [l]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023], revg 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant’s motion was properly granted and plaintiff’s cross-motion was properly denied.

Accordingly, the order is affirmed.

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51382[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Samuel A. Kamara and Michael Zeleznock of counsel), for respondent.

Appeal from an amended order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated May 11, 2023. The amended order, insofar as appealed from, granted the branch of defendant’s motion seeking an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the Department of Finance the undertaking deposited by defendant, and, sua sponte, directed plaintiff “to provide Defendant with [a] Satisfaction of Judgment upon receipt of full payment.”

ORDERED that, on the court’s own motion, so much of the notice of appeal as is from so much of the order as, sua sponte, directed plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment should be deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the amended order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the Department of Finance the undertaking deposited by defendant is denied, and so much of the order as, sua sponte, directed plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment is vacated.

In this action by a provider to recover assigned first-party no-fault benefits, a default judgment was entered in plaintiff’s favor on July 27, 2016 for the total sum of $3,623.62. On [*2]December 4, 2017, defendant’s motion seeking to vacate the default judgment was denied. Defendant appealed to this court from the December 4, 2017 order and, on January 25, 2018, defendant deposited the sum of $3,623.62 with the New York City Department of Finance (DOF) in connection with the appeal. By decision and order dated November 29, 2019, this court affirmed the order denying defendant’s motion to vacate the default judgment (GC Chiropractic, P.C. v Allstate Ins. Co., 65 Misc 3d 156[A], 2019 NY Slip Op 51954[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Defendant subsequently moved for, among other things, an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the DOF the undertaking deposited by defendant. After plaintiff opposed the motion, the Civil Court (Jill R. Epstein, J.), in an amended order dated May 11, 2023, “[p]ursuant to CPLR 2606, 2607 and 8010 . . . direct[ed] plaintiff to proceed to recover the undertaking from the Department of Finance and to provide Defendant with [a] Satisfaction of Judgment upon receipt of full payment.”

While no appeal as of right lies from the sua sponte portion of the order directing plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment, we deem the notice of appeal to be an application for leave to appeal from that portion of the order and grant plaintiff’s application (see CCA 1702 [c]).

Defendant’s contentions that the undertaking it deposited on January 25, 2018 tolled the accrual of interest, that the amount of the undertaking is sufficient to satisfy defendant’s debt, and that it is plaintiff’s burden to move to recover the undertaking lack merit. The deposit of money pursuant to CPLR 5519 in order to obtain a stay of execution of the judgment pending appeal does not toll the accrual of interest (see Purpura v Purpura, 261 AD2d 595; 597 [1999]; see also Wiederhorn v Merkin, 106 AD3d 416 [2013]; Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496 [2005]). We note that since no-fault interest continues to accrue until the judgment is satisfied (see Matter of Matra Bldg. Corp., 19 AD3d 496; see generally 11 NYCRR 65-3.9 [a]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]), the amount of the undertaking alone will be insufficient to satisfy the judgment.

Accordingly, the amended order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking an order pursuant to CPLR 2606, 2607 and 8010 directing plaintiff to move to recover from the Department of Finance the undertaking deposited by defendant is denied and so much of the order as, sua sponte, directed plaintiff to provide defendant with a satisfaction of judgment upon plaintiff’s receipt of full payment is vacated.

BUGGS, J.P., TOUSSAINT and QUIÑONES, JJ., concur.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik 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 (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

Plaintiff argues on appeal that the order, insofar as appealed from, should be reversed and the matter remitted to the Civil Court for consideration of what plaintiff denominated as amended opposition to defendant’s cross-motion, which the court declined to consider. The court rejected that submission as an improper sur-reply. In the alternative, plaintiff argues that defendant’s cross-motion should be denied.

Contrary to plaintiff’s contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [1]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 85 Misc 3d 130[A], 2025 NY [*2]Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Plaintiff also argues that the instant action cannot be maintained, as collateral estoppel effect should be given to an order of the Supreme Court, Nassau County, denying defendant’s motion for summary judgment in a declaratory judgment action brought by defendant in that court. However, the denial of such a motion “has no preclusive effect on this case, as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Furthermore, nothing in the record supports plaintiff’s contention that it was improper for the Civil Court to decline to consider plaintiff’s amended opposition to defendant’s cross motion, nor does plaintiff demonstrate that consideration of the amended opposition would warrant a different outcome.

Plaintiff’s remaining contentions lack merit.

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

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik 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 (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

For the reasons stated in Burke Physical Therapy, P.C., as Assignee of Brown, Wildex v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2025 NY Slip Op _____ [appeal No. 2023-1091 K C], decided herewith), the order, insofar as appealed from, is affirmed.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik 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 (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

For the reasons stated in Burke Physical Therapy, P.C., as Assignee of Brown, Wildex v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2025 NY Slip Op _____ [appeal No. 2023-1091 K C], decided herewith), the order, insofar as appealed from, is affirmed.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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 (Sandra E. Roper, J.), dated September 8, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 8, 2023 as granted defendant’s cross-motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

For the reasons stated in Burke Physical Therapy, P.C., as Assignee of Brown, Wildex v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2025 NY Slip Op _____ [appeal No. 2023-1091 K C], decided herewith), the order, insofar as appealed from, is affirmed.

BUGGS, J.P. and QUIÑONES, JJ., concur.

OTTLEY, J., taking no part.

Goldberg, Miller & Rubin, P.C. (Zachary Whiting of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybakof counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha Alleyne, J.), dated February 27, 2023. The order, insofar as appealed from, denied defendant’s cross-motion for, in effect, summary judgment dismissing the complaint and, upon denying plaintiff’s motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that “[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant” and limited the issue for trial to “whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter.”

ORDERED that the order, insofar as appealed from, is modified by striking so much of the order as, upon denying plaintiff’s motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that “[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant” and limited the issue for trial to “whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter”; as so modified, the order, insofar as appealed from, is affirmed, without costs.

Horizon P.T. Care, P. C. (Horizon) commenced this action against defendant Kemper Insurance Company to recover assigned first-party no-fault benefits for services rendered to its assignor, Anthony Ghee, for injuries allegedly sustained in a motor vehicle accident on December 31, 2014. In its answer, defendant identified itself as Unitrin Auto & Home Insurance Company (Unitrin). Before Horizon commenced this action, a declaratory judgment action had been commenced in Supreme Court, New York County, by Unitrin, as the sole [*2]plaintiff, against Horizon, other providers, and the assignor herein, Ghee, alleging that each of the providers including, insofar as is relevant here, Horizon, had breached the terms of the insurance policy in question by failing to appear for duly scheduled examinations under oath (EUOs). Upon the failure of both Horizon and Ghee, among others, to appear in the declaratory judgment action, the Supreme Court, in an order entered December 1, 2016, granted an unopposed motion by Unitrin for leave to enter a default judgment against, insofar as is relevant here, Horizon and Ghee, relating to the motor vehicle accident that occurred on December 31, 2014 involving defendant Anthony Ghee.

Plaintiff moved in the Civil Court action for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by res judicata by virtue of the order in the declaratory judgment action. By order dated February 27, 2023, the Civil Court (Keisha Alleyne, J.) denied defendant’s cross-motion and, upon denying plaintiff’s motion for summary judgment, found, in effect, pursuant to CPLR 3212 (g), that “[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant” and limited the issue for trial to “whether the [declaratory judgment order in the Supreme Court action] precludes the instant matter.”

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]). In the case at bar, contrary to defendant’s contentions on appeal, it failed to proffer sufficient evidence upon its cross-motion to support its assertion that Unitrin is “the proper insurer” (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; cf. Healthwise Med. Assoc., P.C. v Nationwide Ins., 77 Misc 3d 133[A], 2022 NY Slip Op 51251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Kemper Ins. Co., 77 Misc 3d 132[A], 2022 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). As a result, defendant failed to demonstrate at this juncture that the declaratory judgment action brought by Unitrin, not defendant herein, constitutes “a final adjudication of [the present claims] on the merits” between the same parties (Ciraldo, 140 AD3d at 913; see Matter of Hunter, 4 NY3d 260; Schuylkill Fuel Corp., 250 NY 304). Consequently, defendant’s cross-motion for, in effect, summary judgment dismissing the complaint as barred by res judicata was properly denied.

However, defendant correctly argues that the record does not support finding as “incontrovertible” or “established for all purposes in the action” (CPLR 3212 [g]) that “[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant” and or to limit the issues for trial to “whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter.”

We do not consider defendant’s argument, raised for the first time on appeal, that the subject action is barred by collateral estoppel (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]). We note, however, that, since Horizon defaulted in appearing in the declaratory [*3]judgment action, the EUO no-show issue was not actually litigated (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Parisien v Kemper Ins. Co., 76 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Accordingly, the order, insofar as appealed from, is modified by striking so much of the order as, upon denying plaintiff’s motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that “[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant” and limited the issue for trial to “whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter.”

BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.