Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Fishkin & Associates (Thomas G. Carton and Ross Van Tuyl 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 December 7, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the unpaid balance of a claim for services rendered on February 9, 2015. Defendant moved for summary judgment dismissing the complaint on the ground that the disputed medical services had been rendered in New Jersey, and that defendant had fully paid the claim in accordance with the New Jersey Automobile Medical Fee Schedule (see 11 NYCRR 68.6 [b], [c]). Plaintiff opposed the motion. By order entered December 7, 2017, the Civil Court granted defendant’s motion.

While plaintiff argues that defendant failed to establish that it had timely mailed its denial of claim form, 11 NYCRR 65-3.8 (g) (1) (ii), effective April 1, 2013 (see 11 NYCRR 65-3.8 [g] [2]), provides that “no payment shall be due for . . . claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (see also Oleg’s Acupuncture, P.C. v Hereford Ins. [*2]Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). As the services at issue were provided on February 9, 2015, defendant was not required to establish that it had timely denied the claim in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; Precious Acupuncture Care, P.C. v Hereford Ins. Co., 58 Misc 3d 147[A], 2018 NY Slip Op 50042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Defendant supported its motion for summary judgment dismissing the complaint with an affidavit by a certified medical coder from a third-party company retained by defendant. Upon a review of the record, we find that the coder’s affidavit was sufficient to establish, prima facie, that defendant had fully paid the claim submitted by the New Jersey provider in accordance with the New Jersey medical fee schedule (see 11 NYCRR 68.6 [b], [c]). In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Talia Beard of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 27, 2017. The order granted defendant’s motion to vacate a judgment of that court entered March 8, 2016 pursuant to an order of that court (Devin P. Cohen, J.) entered February 9, 2016 granting plaintiff’s prior unopposed motion for summary judgment, and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint.

ORDERED that the order entered November 27, 2017 is reversed, with $30 costs, and defendant’s motion to vacate the judgment entered March 8, 2016 and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint is denied.

Plaintiff Bronx Medical Diagnostic, P.C. (Bronx Medical) commenced this action in 2015 to recover first-party no-fault benefits for medical services it had provided to its assignor, Monique Diaz, as a result of a motor vehicle accident which had occurred on October 8, 2014. After issue had been joined, Bronx Medical moved in 2015 for summary judgment, and defendant Global Liberty Ins. of NY (Global Liberty) failed to submit any opposition. By order entered February 9, 2016, the Civil Court (Devin P. Cohen, J.) granted the motion.

Prior to the entry of the Civil Court’s February 9, 2016 order, Global Liberty had commenced a declaratory judgment action in the Supreme Court, Bronx County, against Monique Diaz and Bronx Medical, among others, seeking a declaration that there was no [*2]coverage on the part of Global Liberty as a result of the October 8, 2014 accident. A judgment was subsequently entered in the Civil Court on March 8, 2016, pursuant to its February 9, 2016 order, awarding Bronx Medical the principal sum of $1,758.40. Thereafter, by order dated May 20, 2016, the Supreme Court granted a motion by Global Liberty and ordered that “all arbitrations, civil lawsuits, judgments and other proceedings seeking no-fault benefits regarding a motor vehicle accident involving Monique Diaz . . . which occurred on 10/8/14 that have been brought or may be brought by [Diaz and providers including Bronx Medical] are hereby permanently stayed and any judgments are vacated.”

On the basis of the May 20, 2016 Supreme Court order, Global Liberty moved in the Civil Court to vacate the March 8, 2016 judgment and, upon such vacatur, to deny plaintiff’s prior unopposed motion and dismiss the complaint. Bronx Medical opposed the motion and appeals from an order of the Civil Court (Michael Gerstein, J.) entered November 27, 2017 granting the motion.

Reliance by the Civil Court and defendant upon the part of the Supreme Court’s order stating that “any judgments are vacated” is misplaced, as, “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; see Commissioner of Labor of State of NY v Hinman, 103 AD2d 886 [1984]). Furthermore, the record before us indicates that, before the Supreme Court issued its May 20, 2016 order, which, among other things, restrained the prosecution of any pending actions, the Civil Court, by order entered February 9, 2016, had granted Bronx Medical’s motion for summary judgment, thus completing the court’s judicial function (see Vogel v Edwards, 283 NY 118 [1940]; SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, within days after the Civil Court granted Bronx Medical summary judgment, Bronx Medical submitted its proposed judgment to the Civil Court. No action was taken by the parties after the May 20, 2016 Supreme Court order.^[FN1] The entry of the judgment in the Civil Court on March 8, 2016, pursuant to the February 9, 2016 order, was simply a ministerial act of the clerk (see SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U]; see e.g. Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67 [Sup Ct, NY County 1988]), and thus no violation of the Supreme Court’s May 20, 2016 order restraining the prosecution of the action occurred (see SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d [*3]142[A], 2019 NY Slip Op 51267[U]). Consequently, Global Liberty’s motion to vacate the March 8, 2016 Civil Court judgment based on the Supreme Court’s May 20, 2016 order should have been denied.

Accordingly, the order is reversed and defendant’s motion to vacate the March 8, 2016 default judgment and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint is denied.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 15, 2019

Footnotes

Footnote 1:We note that we are aware of the Supreme Court’s February 11, 2016 order to show cause which contained a stay of Bronx Medical in this action, among others. However, as defendant made its motion to vacate the judgment in the Civil Court on the basis of the Supreme Court’s May 20, 2016 order, we do not consider the February 11, 2016 order. In any event, the record is devoid of any indication when the Supreme Court’s February 11, 2016 order was served on Bronx Medical or exactly when Bronx Medical applied for judgment in the Civil Court.

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 2, 2017. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2010. Over five years later, in August 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On or about December 16, 2016, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial.

Once a 90-day demand is received by a plaintiff in a Civil Court action, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co., 47 Misc 3d 142[A], 2015 NY Slip Op 50674[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Since plaintiff failed to do either of these, it was required, in opposition to defendant’s motion to dismiss, to establish a [*2]justifiable excuse for its delay in properly responding to the 90-day demand, and the existence of a meritorious cause of action (see Felix, 52 AD3d 653; South Nassau Orthopedic Surgery & Sports Medicine, P.C., 47 Misc 3d 142[A], 2015 NY Slip Op 50674[U]).

Defendant’s motion was properly granted as, “in opposition to defendant’s motion to dismiss the complaint, plaintiff made no attempt to demonstrate the existence of an excuse, justifiable or otherwise, for plaintiff’s failure to comply with the 90-day notice” (South Nassau Orthopedic Surgery & Sports Medicine, P.C., 47 Misc 3d 142[A], 2015 NY Slip Op 50674[U], *1; see also Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co., 62 Misc 3d 141[A], 2019 NY Slip Op 50085[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

Accordingly, the order is affirmed.

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

Decided on November 8, 2019

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

Law Offices of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondents (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 3, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor.

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

Plaintiffs, Bed Stuy Medical, P.C. and Bed Stuy Physical Therapy, P.C., commenced this action to recover first-party no-fault benefits for services they had provided to their assignor, Valdez Vallon, who had allegedly sustained injuries in a motor vehicle accident which had occurred on March 15, 2013. Defendant moved for summary judgment dismissing the complaint on the ground that, in a prior action entitled “Yevgeniy Margulis, Ph.D., Bed Stuy Physical Therapy, P.C., Bed Stuy Medical, P.C. a/a/o Constantine McLaughlin, Valdez Vallon against Travelers Insurance,” the Civil Court (Theresa M. Ciccotto, J.), by order entered January 28, 2016, had granted defendant’s motion for summary judgment dismissing the same claims related [*2]to the same accident and assignor, Valdez Vallon, as the claims at issue herein.^[FN1] Defendant’s motion for summary judgment in the prior action had been unopposed, and plaintiffs never moved to vacate their default in opposing the motion. Thus, defendant asserted, plaintiffs’ present action is barred by the doctrine of res judicata. Defendant appeals from an order of the Civil Court (Harriet L. Thompson, J.) entered October 3, 2017 denying defendant’s motion for summary judgment dismissing this action and making implicit CPLR 3212 (g) findings in plaintiff’s favor.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). The doctrine of res judicata is applicable to a judgment that has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]).

In support of the motion at issue, defendant submitted the January 28, 2016 order of the Civil Court and defendant’s moving papers in the prior action, which included the complaint, supporting affidavits and the claim forms involved therein. Upon a review of the record, we find that defendant’s moving papers established that the causes of action asserted herein are identical to those which were asserted in the prior action, which action was decided by the January 28, 2016 order of the Civil Court granting defendant’s motion for summary judgment dismissing those claims. In view of the foregoing, plaintiffs were precluded, under the doctrine of res judicata, from asserting the same causes of action in this case (see Matter of Hodes v Axelrod, 70 NY2d 364, 372 [1987]; see also Matter of Hunter, 4 NY3d 260; Lighthouse 925 Hempstead, LLC v Citibank, N.A., 66 AD3d 846, 847 [2009]; Matter of ADC Contr. & Constr., Inc. v Town of Southampton, 50 AD3d 1025 [2008]). Consequently, defendant established its entitlement to summary judgment.

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

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 08, 2019

Footnotes

Footnote 1:The claim by Yevgeniy Margulis, Ph.D., as assignee of Constantine McLaughlin, was previously settled by stipulation dated April 2, 2014.