The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman 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 April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) for the purposes of disposition of the motion and, upon consolidation, to dismiss 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 moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15)for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court [*2]entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

For the reasons stated in EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (__ Misc 3d __, 2019 NY Slip Op _____ [appeal No. 2017-2137 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman 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 April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion and, upon consolidation, to dismiss 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 moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court [*2]entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

For the reasons stated in EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (__ Misc 3d __, 2019 NY Slip Op _____ [appeal No. 2017-2137 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman 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 April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion and, upon consolidation, to dismiss 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 moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. In support of its motion, defendant alleged that it conducts no business in the State of New York, including that it does not issue insurance policies here, has no sales representative or agent within [*2]the state, and is not licensed to transact business within the State of New York. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

On appeal, plaintiff contends that the court erred in consolidating the three actions, arguing that consolidation is improper because defendant “failed to proffer any of the pleadings from any of the actions.” As this argument is raised for the first time on appeal, it is not considered (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Upon defendant’s prima facie showing that the Civil Court lacked personal jurisdiction over it, on the ground that there was no jurisdictional basis for suit in the Civil Court of the City of New York (see CCA 404), the burden shifted to plaintiff to establish that it had acquired jurisdiction, as plaintiff “carries the ultimate burden of proof on that issue” (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; see also Sanchez v Major, 289 AD2d 320 [2001]; Brandt v Toraby, 273 AD2d 429 [2000]; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In determining whether a plaintiff has met its burden, a court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to plaintiff, and must resolve all doubts in favor of jurisdiction (see Brandt, 273 AD2d at 430). Here, plaintiff failed to meet its burden. Plaintiff’s opposition papers consisted only of the affirmation of its counsel, who had no personal knowledge of the underlying facts (see Carte v Parkoff, 152 AD2d 615 [1989]). Plaintiff failed to produce evidence showing a jurisdictional basis for the service (see CCA 404; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]; see also Matter of Hereford Ins. Co. v American Ind. Ins., 136 AD3d 551 [2016]).

In view of the foregoing, we do not consider plaintiff’s other arguments.

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

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

Decided on August 9, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered April 14, 2017. The judgment, entered pursuant to an order of that court entered November 2, 2016 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to dismiss the complaint, dismissed the complaint.

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

Plaintiff Tam Medical Supply Corp. (Tam) commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident on August 29, 2012. Defendant insurer (Kemper) commenced a declaratory judgment action in the Supreme Court, Bronx County, against Tam and its assignor, among others, seeking a declaration that Kemper has no obligation to pay any pending or future claims for no-fault benefits arising from an accident on August 29, 2012, and Kemper moved for summary judgment. By order dated April 11, 2016, the Supreme Court granted Kemper’s motion, finding that Kemper was not obligated to pay the claims pertaining to the August 29, 2012 accident.

Thereafter, Tam moved in the Civil Court for summary judgment and Kemper cross-m[*2]oved in the Civil Court to dismiss the complaint on the ground that Tam’s action is barred by virtue of the Supreme Court’s order which granted summary judgment to Kemper. By order entered November 2, 2016, the Civil Court denied Tam’s motion and granted Kemper’s cross motion. Tam appeals from a judgment which was subsequently entered dismissing the complaint.

By virtue of the findings of fact of the Supreme Court within its award granting summary judgment to Kemper, there was a conclusive determination of the merits of the claims in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). Consequently, as Tam’s action in the Civil Court is barred by the doctrine of res judicata (see Bayer, 115 AD3d at 899; Panagiotou, 88 AD3d 779; Methal, 50 AD3d at 656), the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion.

Accordingly, the judgment is affirmed.

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 26, 2017. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether the additional verification requested by defendant remained outstanding. At the nonjury trial, the Civil Court (Robin Kelly Sheares, J.), with no testimony having been presented, granted a motion by defendant for a directed verdict, on the ground that plaintiff had failed to produce a witness to show that plaintiff had mailed the requested verification. Plaintiff appeals from a judgment, entered July 26, 2017, which dismissed the complaint.

In a prior order denying defendant’s motion for summary judgment dismissing the complaint, the Civil Court (Katherine A. Levine, J.) made the following four findings “for all purposes in this matter pursuant to CPLR 3212 (g)”: that plaintiff had timely submitted its bills to defendant, that defendant had received the bills, that the bills remained unpaid, and that defendant had timely mailed verification requests to plaintiff.^[FN1] The motion court found that [*2]plaintiff had raised a triable issue of fact as to whether it had provided the requested verification, and held that the only issue for trial was “whether the requested verification remains outstanding.”

Where a no-fault insurer is relying on the defense that an action is premature because verification is outstanding, it is the defendant insurer’s prima facie burden at trial to demonstrate (1) that verification requests were timely mailed and (2) that the defendant did not receive the requested verification (see 11 NYCRR 65-3.8 [a]; Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 140[A], 2017 NY Slip Op 51857[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As there was a finding for all purposes in this action that defendant had timely mailed verification requests to plaintiff, defendant did not have to prove this element of its defense at trial. In contrast, there was no finding that defendant had not received the requested verification. If the motion court had also found, for all purposes in the action, that defendant had not received the requested verification, meaning that that fact could no longer be disputed or rebutted, then, rather than denying defendant’s motion for summary judgment and making CPLR 3212 (g) findings, the appropriate course of action in this case would have been to grant summary judgment to defendant (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Instead, the motion court simply found that plaintiff had raised a triable issue of fact as to that question, the only impact of which was that a trial, limited to the issue of “whether the requested verification remains outstanding,” would take place (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

CPLR 3212 (g) permits the limitation of issues for trial by the specification of facts that “are not in dispute or incontrovertible”; it does not permit the kind of burden shifting engaged in by the trial court as to issues which remain triable—here, by requiring plaintiff to commence the trial to establish that the outstanding verification had been mailed (see id.). Since the motion court had previously found that a trial was warranted, it remained defendant’s initial burden to present testimony to demonstrate that it had not received the requested verification, before the burden shifted to plaintiff to prove that it had provided responses. Consequently, the trial court erred in, in effect, requiring plaintiff to present its proof first at the limited trial and, when plaintiff failed to present a witness to testify with respect to plaintiff’s assertion that it had mailed the requested verification to defendant, granting defendant’s motion for a directed verdict.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether requested verification remains outstanding.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: August 02, 2019

Footnotes

Footnote 1:The court specifically stated that the requests were mailed. The finding that they were timely mailed is implicit in the court’s order.