Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 4, 2017. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

In this action by a provider, Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. (Gentlecare), to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on August 11, 2012, defendant American Independent Ins. Co. (AIIC) moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the action is barred under the doctrine of collateral estoppel by virtue of two determinations of the Supreme Court, Kings County: (1) an order entered May 13, 2014, granting, on default, a declaratory judgment stating, among other things, that the “pertinent accidents were staged,” and that, therefore, AIIC is not obligated to pay first-party benefits regarding specified claim numbers to Emmanuel Borgella, the assignor herein, or to other named parties who had defaulted in that action (which parties did not include Gentlecare); and (2) a decision after trial dated March 8, 2016, finding in favor of AIIC as against various parties, including Gentlecare, and directing that a judgment be settled on notice. By order entered October 4, 2017, the Civil Court granted AIIC’s motion. Gentlecare appeals, arguing that AIIC did not establish its collateral estoppel defense based on either document.

“Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, or those in privity, whether or not the tribunals or causes of action are the same” (Shifer v Shifer, 165 AD3d 721, 723 [2018]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). The party seeking to rely on collateral estoppel has the burden of demonstrating that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; Jamison v Aquai, 128 AD3d 775 [2015]), and that the other party “had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see Manko v Gabay, 175 AD3d 484 [2019]).

The order entered May 13, 2014 did not name Gentlecare as one of the parties to whom AIIC was not obligated to pay first-party no-fault benefits, and AIIC failed to demonstrate that Gentlecare was in privity with the assignor herein, Emmanuel Borgella, who was named in the order (see e.g. Kolel Damsek Eliezer, Inc. v Schlesinger, 90 AD3d 851 [2011]). Thus, AIIC failed to establish that it is not obligated to pay first-party benefits to Gentlecare based upon the May 13, 2014 order.

AIIC also relied upon the March 8, 2016 decision rendered after trial in the Supreme Court, which directed a judgment to be settled on notice. It is well settled that “[a] decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel” (Egbert Sq. Realty, LLC v 112-114 Corp., 93 AD3d 687, 687 [2012]; see Huntington Med. Plaza, P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Although AIIC did not proffer any judgment delineating the rights of the parties, this court takes judicial notice that a judgment was, in fact, signed by Justice Jacobson on April 22, 2016 and entered on August 23, 2016 — more than a year before the Civil Court rendered its order in the instant action (see Thimmaiah v Air-India, Ltd., 19 Misc 3d 138[A], 2008 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The judgment clearly bars Gentlecare from seeking reimbursement for claims pertaining to the accident in question under policies naming its assignor, Emmanuel Borgella, as an insured or a claimant. Consequently, the order granting defendant’s motion for summary judgment should not be disturbed.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 4, 2017. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

In this action by a provider, Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. (Gentlecare), to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on August 11, 2012, defendant American Independent Ins. Co. (AIIC) moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the action is barred under the doctrine of collateral estoppel by virtue of two determinations of the Supreme Court, Kings County: (1) an order entered May 13, 2014, granting, on default, a declaratory judgment stating, among other things, that the “pertinent accidents were staged,” and that, therefore, AIIC is not obligated to pay first-party benefits regarding specified claim numbers to Emmanuel Borgella, the assignor herein, or to other named parties who had defaulted in that action (which parties did not include Gentlecare); and (2) a decision after trial dated March 8, 2016, finding in favor of AIIC as against various parties, including Gentlecare, and directing that a judgment be settled on notice. By order entered October 4, 2017, the Civil Court granted AIIC’s motion. Gentlecare appeals, arguing that AIIC did not establish its collateral estoppel defense based on either document.

“Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, or those in privity, whether or not the tribunals or causes of action are the same” (Shifer v Shifer, 165 AD3d 721, 723 [2018]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). The party seeking to rely on collateral estoppel has the burden of demonstrating that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; Jamison v Aquai, 128 AD3d 775 [2015]), and that the other party “had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see Manko v Gabay, 175 AD3d 484 [2019]).

The order entered May 13, 2014 did not name Gentlecare as one of the parties to whom AIIC was not obligated to pay first-party no-fault benefits, and AIIC failed to demonstrate that Gentlecare was in privity with the assignor herein, Emmanuel Borgella, who was named in the order (see e.g. Kolel Damsek Eliezer, Inc. v Schlesinger, 90 AD3d 851 [2011]). Thus, AIIC failed to establish that it is not obligated to pay first-party benefits to Gentlecare based upon the May 13, 2014 order.

AIIC also relied upon the March 8, 2016 decision rendered after trial in the Supreme Court, which directed a judgment to be settled on notice. It is well settled that “[a] decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel” (Egbert Sq. Realty, LLC v 112-114 Corp., 93 AD3d 687, 687 [2012]; see Huntington Med. Plaza, P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Although AIIC did not proffer any judgment delineating the rights of the parties, this court takes judicial notice that a judgment was, in fact, signed by Justice Jacobson on April 22, 2016 and entered on August 23, 2016 — more than a year before the Civil Court rendered its order in the instant action (see Thimmaiah v Air-India, Ltd., 19 Misc 3d 138[A], 2008 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The judgment clearly bars Gentlecare from seeking reimbursement for claims pertaining to the accident in question under policies naming its assignor, Emmanuel Borgella, as an insured or a claimant. Consequently, the order granting defendant’s motion for summary judgment should not be disturbed.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Jennifer A. Joseph of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 18, 2017. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Plaintiff opposed defendant’s motion on the ground that defendant had failed to establish where the accident had occurred, and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennett, 78 AD3d 936 [2010]).

Upon the record before us, we find that defendant failed to demonstrate any potential hardship to proposed witnesses if the action is heard in New York (see Turay, 61 AD3d at 966), and defendant failed to otherwise establish with admissible evidence that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). Consequently, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens should have been denied.

With respect to plaintiff’s cross motion for summary judgment, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Jennifer A. Joseph of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 18, 2017. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Defendant asserted that, while the applicable insurance policy had been issued in Texas, the New Jersey courts were the proper forum for plaintiff’s action, as Texas does not offer no-fault benefits. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennet, 78 AD3d 936 [2010]).

In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff’s assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor’s residence. In any event, we note that defendant’s own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant’s motion seeking dismissal based on forum non conveniens, that defendant’s evidence had sufficiently demonstrated a lack of significant contacts to New York.

With respect to plaintiff’s cross motion for summary judgment, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

Glinkenhouse Queen, Esqs. (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 20, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from April 9, 2008 through February 22, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in April 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from April 9, 2008 through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. [*2]Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

Accordingly, the appeal is dismissed.

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

Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 8, 2017, deemed from a judgment of that court entered January 22, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 8, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,281.09.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, 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 moved for summary judgment dismissing the complaint, alleging that it had timely denied the claims at issue on the ground that plaintiff had failed to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]), and that the amounts plaintiff sought to recover exceeded the amounts permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Defendant’s appeal from an order of the Civil Court entered December 8, 2017 denying defendant’s motion and granting plaintiff’s cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $3,281.09 which was entered on January 22, 2018 pursuant to the order (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification. Moreover, we find that, on this record, there is also a triable issue of fact as to defendant’s fee schedule defense, which defense, contrary to the finding of the Civil Court, defendant was not required to establish that it had preserved, as the services at issue were rendered in 2015 (see 11 NYCRR 65—3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Paul Kenny