The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 28, 2019. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its cross motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) were properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff’s assignor failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Neptune Med. Care, P.C. v Praetorian Ins. Co., 64 Misc 3d 132[A], 2019 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Mintzer, Sarowitz, Zeris, Ledva and Meyers, LLP (Kate M. Cifarelli of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendant’s 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

The affidavit of defendant’s personal injury protection unit supervisor established prima facie that defendant had never received the claim in question from plaintiff. However, the affidavit of plaintiff’s billing clerk, submitted in opposition to defendant’s motion, was sufficient to give rise to a presumption that the subject claim form had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), raising a triable issue of fact as to whether defendant had received the claim form. Contrary to defendant’s argument, it did not demonstrate, as a matter of law, that the address to which plaintiff mailed the claim form was not defendant’s address, and, as a result, defendant’s motion for summary judgment dismissing the complaint was properly denied (cf. Wave Med. Servs., P.C. v Metlife Auto & Home, 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Decided on May 14, 2021

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

Decided on May 14, 2021

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

Decided on May 14, 2021

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

Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew A. Sarles of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered August 2, 2018. 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 by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the grounds that defendant had previously paid four of the claims involved in this action and that the remaining six claims were denied because plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit of defendant’s claims manager established that defendant had previously paid four of the claims sought to be recovered in the complaint. In opposition, plaintiff did not oppose the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those four claims and, on appeal, plaintiff concedes that the branch of defendant’s motion seeking summary judgment dismissing those claims should be granted.

As to the remaining six claims, the affidavit submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office [*2]practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that the EUO scheduling letters had been timely mailed (see id.) and, since she was present in her office to conduct the EUO of plaintiff on the scheduled dates, that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement upon the branch of defendant’s motion seeking summary judgment dismissing those six claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Big Apple Med. Supply, Inc. v Titan & Nationwide, 66 Misc 3d 131[A], 2019 NY Slip Op 52067[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s motion.

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Decided on May 14, 2021

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

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 23, 2019. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is denied.

Plaintiff commenced this action in 2015 to recover assigned first-party no-fault benefits. Defendant failed to appear in the action, and, on February 8, 2016, a default judgment was entered upon plaintiff’s motion. Defendant thereafter served an answer by mail and moved to dismiss the complaint for lack of jurisdiction, or, in the alternative, to vacate the default judgment, extend defendant’s time to answer and compel plaintiff to accept the answer. Plaintiff opposed the motion. By order entered July 28, 2017, the Civil Court (Andrew Borrok, J.) granted defendant’s motion to the extent of vacating the default judgment, stating that the “answer served by defendant is deemed served and received by plaintiff.” On November 2, 2017, defendant served plaintiff with a 90-day demand to file a notice of trial, which demand plaintiff rejected as premature. On February 1, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint on the ground that plaintiff had failed to prosecute the action. Plaintiff opposed and now appeals from an order of the Civil Court entered January 23, 2019 granting defendant’s motion.

A court may dismiss an action for failure to prosecute under CPLR 3216 only if the statutory preconditions to dismissal are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Alli v Baijnath, 101 AD3d 771 [2012]; Neary v Tower Ins., 94 AD3d 723 [2012]). In the instant case, as defendant moved to dismiss the complaint in February 2018, before the expiration of one year after the Civil Court had deemed defendant’s answer served as [*2]of July 28, 2017, defendant failed to satisfy a statutory precondition to dismissal of the complaint (see CPLR 3216 [b] [2]; Madigan v Crompton, 45 AD3d 650 [2007]). Consequently, there was no basis for the Civil Court to grant defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro and Susan Eisner 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 (Odessa Kennedy, J.), entered April 5, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

First Care Medical Equipment, LLC (First Care) commenced this action against Encompass Insurance (Encompass) to recover assigned first-party no-fault benefits for supplies which had been provided to Sophia Brooks, who was allegedly injured in an accident on August 4, 2014. Before First Care commenced this action, Encompass had commenced a declaratory judgment action in the Supreme Court, New York County, against First Care, among other providers, alleging, insofar as is relevant, that First Care had failed to appear for duly scheduled examinations under oath. Sophia Brooks was not a named defendant in the declaratory judgment action. After the providers failed to appear in the Supreme Court action, Encompass moved in the Supreme Court for a default judgment. The Supreme Court issued a declaratory judgment, dated April 3, 2018, declaring that Encompass is “not obligated to provide any coverage, reimbursements or pay any invoices, sums or funds to First Care . . . for any and all no-fault related services for which claims/bills have been or may in the future by submitted by [First Care] to [Encompass] for which an Examination Under Oath of . . . First Care . . . was requested and . . . First Care . . . failed to appear.”

Thereafter, Encompass moved in the Civil Court for summary judgment dismissing First Care’s complaint, contending that the Civil Court action is barred by the declaratory judgment. First Care opposed the motion and cross-moved for summary judgment. By order entered April 5, 2019, insofar as relevant to this appeal, the Civil Court denied defendant’s motion.

The doctrine of res judicata, or claim preclusion, may be invoked where a party seeks to [*2]relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in the prior litigation by a party or those in privity with a party (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc 3d 145[A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). As the Civil Court correctly found, defendant failed to establish that the services at issue are ones for which an EUO had been timely requested and plaintiff failed to appear. Consequently, defendant did not meet its burden of demonstrating that this action is barred by res judicata based on the declaratory judgment, and, thus, its motion was properly denied.

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

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Buiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered July 23, 2018. The order, insofar as appealed from, denied the branches of defendant’s motion seeking leave to reargue or renew plaintiff’s prior motion, made pursuant to CPLR 3126, to preclude defendant from offering evidence at trial, which had been determined in an order of that court (Odessa Kennedy, J.) entered January 30, 2018, or, in the alternative, seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial.

ORDERED that the order entered July 23, 2018, insofar as appealed from, is reversed, without costs, the branch of defendant’s motion seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial is granted, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 603, to sever the first cause of action from the remaining four causes of action. Plaintiff opposed the motion and cross-moved to compel discovery or preclude defendant from offering evidence at trial. By order entered August 17, 2016, the Civil Court (Steven Z. Mostofsky, J.) denied defendant’s motion and granted plaintiff’s unopposed cross motion to the extent of compelling defendant to provide discovery “within 60 days of the date of the order or be precluded.” By decision and order dated October 14, 2016, this court granted defendant’s motion for a stay pending appeal of the August 17, 2016 order, but provided that, if defendant’s appeal was not perfected by January 6, 2017, this “court, on its own motion, may vacate the stay, or [plaintiff] may move to vacate the stay on three days’ notice.” Defendant was unable to perfect the appeal by January 6, 2017 because the clerk of the Civil Court did not file [*2]the return as required by CCA 1704 (b). Nevertheless, the stay imposed by this court’s October 14, 2016 decision and order was not vacated until October 18, 2019. Meanwhile, immediately upon learning that the papers necessary to perfect its appeal were missing from the Civil Court’s file, defendant moved to deem copies of the papers to be originals. On October 3, 2017, plaintiff moved to preclude defendant from offering evidence at trial. By order entered January 30, 2018, the Civil Court (Odessa Kennedy, J.) granted both unopposed motions.

Defendant then made the instant motion for leave to reargue or renew plaintiff’s motion to preclude defendant from offering evidence at trial, or, in the alternative, to vacate so much of the January 30, 2018 order as had granted plaintiff’s preclusion motion. By order entered July 23, 2018, the Civil Court (Sharon Bourne-Clarke, J.) denied defendant’s motion, finding that “defendant failed to demonstrate that there was a stay order in effect that prevented [the Civil Court] from issuing its January 30, 2018 order.”

The branch of defendant’s motion seeking leave to reargue or renew should have been denied on the ground that there was no opposition to plaintiff’s prior motion that could have been reargued or renewed (see Hudson City Sav. Bank v Bomba, 149 AD3d 704 [2017]). While defendant argues on appeal that so much of the January 30, 2018 order as granted plaintiff’s preclusion motion should be vacated pursuant to CPLR 5015 (a) (4), that argument lacks merit because the violation of a stay does not implicate subject matter jurisdiction within the meaning of CPLR 5015 (a) (4).

However, vacatur is appropriate in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith, 20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), since plaintiff’s preclusion motion, which resulted in the January 30, 2018 order, violated a stay of this court. Contrary to the Civil Court’s statement, it had enough information to conclude that there had been a stay in effect that precluded the instant motion.

Accordingly, the order entered July 23, 2018, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial is granted, and plaintiff’s motion is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.