Korsunskiy Legal Group, P.C. (Koenig Pierre of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg and Samuel Kamara 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 December 11, 2015. The judgment, entered pursuant to a determination of that court that plaintiff had defaulted by failing to comply with a condition for the granting of an adjournment of the trial, dismissed the complaint.

ORDERED that the appeal is dismissed except insofar as it brings up for review the determination that plaintiff had defaulted by failing to comply with the condition for the granting of an adjournment of the trial; and it is further,

ORDERED that the judgment, insofar as reviewed, is reversed, with $30 costs, the determination that plaintiff had defaulted by failing to comply with the condition for the granting of an adjournment of the trial is vacated, and the matter is remitted to the Civil Court for a new determination, following a hearing, of whether plaintiff had satisfied the condition for the granting of an adjournment and for any and all further proceedings, in accordance with this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment dismissing the complaint, which was entered upon the Civil Court’s determination that plaintiff had defaulted by failing to comply with a condition set by the court for granting plaintiff an adjournment of the trial, to wit, that plaintiff provide proof of the funeral [*2]which plaintiff’s counsel alleged his witness had been attending on the scheduled trial date.

We note that, although no appeal lies from a judgment entered on the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967]), which, in this case, was the Civil Court’s determination that plaintiff had defaulted by failing to satisfy the condition for the granting of an adjournment (see Park Lane N. Owners, Inc. v Gengo, 151 AD3d 874 [2017]; Delijani v Delijani, 100 AD3d 823 [2012]; Matter of Branch v Cole-Lacy, 96 AD3d 741 [2012]; Sarlo-Pinzur v Pinzur, 59 AD3d 607 [2009]).

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283 [1984]), and the Civil Court acted within its discretion in conditioning the granting of an adjournment of the trial upon plaintiff’s providing proof of the funeral that its witness had allegedly been attending. However, we find that, in the circumstances presented, the Civil Court improvidently exercised its discretion in not allowing plaintiff’s witness to testify in order to try to provide the required proof. Consequently, we remit the matter to the Civil Court for a hearing to give plaintiff such an opportunity, following which the court shall determine whether it is satisfied with plaintiff’s proof.

Accordingly, the judgment, insofar as reviewed, is reversed, the determination that plaintiff had defaulted by failing to comply with a condition for the granting of an adjournment is vacated, and the matter is remitted to the Civil Court for a new determination, following a hearing, of whether plaintiff had satisfied the condition for the granting of an adjournment and for any and all further proceedings.

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

The Rybak Firm, PLLC (Damin J. Toell 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 (Katherine A. Levine, J.), entered April 8, 2016. The order granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage and implicitly denied plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s cross motion; as so modified, the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage, in that defendant had cancelled the policy, for nonpayment of the premium, prior to the accident at issue. In the alternative, defendant, in effect, sought partial summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of the amounts permitted by the workers’ compensation fee schedule. By order entered April 8, 2016, the Civil Court granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage without addressing the remaining branch of the cross motion, and implicitly denied plaintiff’s motion for summary judgment.

While defendant asserts that Virginia law applies to this case, as the insurance policy had been obtained in Virginia, and it insured a Virginia resident and vehicle, defendant failed to demonstrate that it had mailed its cancellation notice in accordance with its office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) “by registered or certified mail,” as required by the applicable statute (Va. Code Ann. § 38.2-2208 [A] [1] [a]). Consequently, the Civil Court should have denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.

As the remaining branch of defendant’s cross motion was not addressed by the Civil Court, we remit the matter to the Civil Court to determine that branch of defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, contrary to plaintiff’s contention, 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 claims 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 timely denials that were 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 the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s cross motion.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Lewin & Baglio, LLP (Brendan Kearns of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 14, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order, insofar as appealed from, is affirmed, without 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 the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT).

Upon a review of the record, we agree with the Civil Court’s determination that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant was not entitled to summary judgment dismissing the complaint. However, as defendant’s moving papers established that [*2]defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered August 28, 2015. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment, and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to defendant’s discovery demands to the extent of compelling plaintiff to respond to certain of defendant’s discovery demands and to produce plaintiff for an examination before trial.

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 from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to defendant’s discovery demands to the extent of compelling plaintiff to provide defendant with “management agreements to the extent available, W-2 forms, business-related bank records, and lease agreements,” and to produce plaintiff for an examination before trial.

Plaintiff’s motion for summary judgment was properly denied, since the proof submitted by plaintiff failed to establish that the claims 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 timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see [*2]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]).

Plaintiff argues that defendant is not entitled to the discovery ordered by the Civil Court. However, as plaintiff failed to timely challenge the propriety of the discovery demands (see CPLR 3122 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). While discovery demands which concern matters relating to defenses which a defendant is precluded from raising are palpably improper and may not be discoverable, the defense at issue in this case—that plaintiff is not entitled to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to its failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005])—is not precludable (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2017]). Plaintiff has not demonstrated that the items at issue are privileged or palpably improper. In addition, defendant is entitled to an examination before trial of plaintiff (see CPLR 3101 [a]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

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

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

The Rybak Firm, PLLC (Damien J. Toell and Karina Barska of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered October 5, 2016. 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident in question.

In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff opposed defendant’s motion only with an affirmation by counsel, who did not assert that he possessed personal knowledge of the facts, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

Robyn M. Brilliant, P.C. (Robyn M. Brilliant and Barry Montrose of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon, in effect, denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

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, the Civil Court, in effect, denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, and found, in effect pursuant to CPLR 3212 (g), that plaintiff had established that it had mailed the bill to defendant, that the bill was unpaid, and that defendant had timely denied the claim. The court limited the issues for trial to defendant’s basis for denying the claim, to wit, that plaintiff’s assignor had fraudulently procured the insurance policy by materially misrepresenting her address to obtain a lower insurance premium. Defendant appeals from so much of the order entered March 9, 2016 as denied defendant’s cross motion for summary judgment dismissing the complaint and made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court findings, in effect pursuant to CPLR 3212 (g), in plaintiff’s favor (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]).

Defendant cross-moved on the ground that plaintiff’s assignor had fraudulently procured the insurance policy in question by making a material misrepresentation on her policy application as to her place of residence and the principal location for the garaging of the vehicle which was to be insured. Upon a review of the record, we find that defendant failed to establish as a matter [*2]of law ” ‘that it would not have issued the same policy if the correct information had been disclosed in the application’ ” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011], quoting Schirmer v Penkert, 41 AD3d 688, 691 [2007]; see Renelique v National Liab. & Fire Ins. Co., 53 Misc 3d 147[A], 2016 NY Slip Op 51615[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant further asserts that plaintiff is collaterally estopped from maintaining the present action by virtue of an order, rendered on default, by the Civil Court, Queens County (Richard G. Latin, J.), in an action against plaintiff’s assignor, finding that the assignor had made “material and/or fraudulent misrepresentations” on her application for the insurance policy. However, the doctrine of collateral estoppel is not applicable here, as plaintiff was not named in the Civil Court, Queens County, action, and, thus, plaintiff was not in privity with the assignor (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67, 69 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, we reach no other issue.

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

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

Decided on June 28, 2018

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg 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 July 8, 2016. The order granted 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 denied.

Plaintiff commenced this action to recover first-party no-fault benefits for services it had provided to its assignor, who had purportedly been injured in a motor vehicle accident on March 6, 2012. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel, based upon prior orders of the Civil Court, Queens County, entered in two separate actions and on the further ground that defendant did not have a policy of insurance which covered plaintiff’s assignor on the date of the accident. Plaintiff opposed the motion. By order entered July 8, 2016, the Civil Court granted the motion, finding that plaintiff is collaterally estopped from proceeding in this action, and the court dismissed the complaint with prejudice.

In support of its motion, defendant annexed the prior orders of the Civil Court, Queens County, which stated, insofar as is relevant, that defendant had established that there was no coverage “at the time of the accident in question, as the policy was cancelled for nonpayment effective 2/28/12.” Although defendant’s attorney asserted in an affirmation in support of the [*2]motion at bar that the “orders were rendered on motions that contained almost identical facts and evidence as presented herein,” neither order stated the date of the accident at issue before that court, and defendant did not annex the respective complaints or underlying motion papers. We also note that the present plaintiff, Island Life Chiropractic Pain Care, PLLC, was not a party to either of the Civil Court, Queens County, actions, as those actions had been commenced by Island Life Chiropractic, P.C. and Tam Medical Supply Corp., respectively.

A party seeking to invoke collateral estoppel must demonstrate “that the particular issue was actually litigated, squarely addressed, and specifically decided in a prior proceeding” (M. Kaminsky & M. Friedberger v Wilson, 150 AD3d 1094, 1095 [2017]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). In the case at bar, defendant’s submission in support of its motion for summary judgment of copies of the two orders of the Civil Court, without more, was, under the circumstances presented, insufficient to show that plaintiff was attempting to relitigate the same issue which had been raised in the prior actions (see Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto Ins. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51289[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant failed to demonstrate its entitlement to summary judgment based upon the doctrine of collateral estoppel.

Defendant also argued that, even if the court did not find that defendant had established its lack of coverage defense through collateral estoppel, the evidence it submitted in support of its present motion was, in any event, sufficient to establish the defense. To establish a lack of coverage, defendant was required to demonstrate that the applicable policy had been validly cancelled (see Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 48 Misc 3d 138[A], 2015 NY Slip Op 51216[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see generally Great Health Care Chiropractic, P.C. v Infinity Group, 50 Misc 3d 144[A], 2016 NY Slip Op 50257[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). However, defendant failed to prove the mailing of a cancellation letter in accordance with New York law (see Vehicle and Traffic Law § 313 [1] [a]) or, contrary to what defendant asserted for the first time in a reply affirmation in the Civil Court, in accordance with Connecticut law (see Conn. Gen. Stat. § 38a-343 [a]). Consequently, defendant failed to demonstrate that the insurance policy had been validly cancelled.

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

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered October 17, 2014. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that the denial of claim form, which had denied the claim on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted an affirmed peer review report which set forth a factual basis and medical rationale for the neurologist’s determination that there was a lack of medical necessity for the services at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant’s prima facie showing was not rebutted by plaintiff.

Upon the record presented, we find no merit to plaintiff’s argument that defendant’s cross motion should have been denied, or a continuance ordered to provide an opportunity for disclosure, as plaintiff had ample opportunity to take steps to compel discovery or otherwise investigate the case before it moved for summary judgment. Plaintiff failed to do so, and its inaction may not now be used as a means to defeat defendant’s cross motion (see Edwards v Terryville Meat Co., 178 AD2d 580 [1991]; Silinsky v State-Wide Ins. Co., 30 AD2d 1 [1968]).

Accordingly, the order is affirmed.

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

Decided on June 18, 2018