Decided on July 21, 2023

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), entered April 5, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits arising out of a March 9, 2015 accident, defendant moved for summary judgment dismissing the first through fifth and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and dismissing the sixth cause of action on the ground that it was barred by an April 18, 2019 declaratory judgment issued by the Supreme Court, Nassau County, in an action commenced by defendant herein against plaintiff herein in regard to the same March 9, 2015 accident. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered April 5, 2022, the Civil Court (Ellen E. Edwards, J.) granted defendant’s motion for summary judgment on the ground that plaintiff had failed to appear for duly scheduled EUOs and denied plaintiff’s cross-motion.

“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 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel [*2]Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

With respect to the branch of defendant’s motion seeking summary judgment dismissing the sixth cause of action, defendant demonstrated that the assignor, accident date, and date of service in the Supreme Court declaratory judgment action were identical to those for the claim underlying the sixth cause of action in the instant case. Consequently, that cause of action was barred under the doctrine of res judicata by virtue of the April 18, 2019 declaratory judgment and, thus, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing that cause of action (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), albeit on other grounds, since a judgment in favor of plaintiff upon the sixth cause of action in this action would destroy or impair rights or interests established by the declaratory judgment (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Contrary to plaintiff’s sole contention on appeal with respect to so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing the first through fifth and seventh causes of action, the affidavit of defendant’s employee was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing those causes of action.

Accordingly, the order is affirmed.

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak 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 December 9, 2021. 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 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 moved for summary judgment dismissing the complaint on the ground that plaintiff failed to provide requested verification. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. In an order entered December 9, 2021, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion and, upon implicitly denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that plaintiff timely submitted the bills at issue to defendant. As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment.

The proof submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed its initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that defendant had not received the requested verification (see American Kinetics Lab, Inc. v GEICO Gen. Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51267[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). As defendant further demonstrated that it had timely denied plaintiff’s [*2]claims (see 11 NYCRR 65-3.5 [o]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16, 18-19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Plaintiff’s owner’s statement that he had mailed the requested verification “to the extent such responses were proper and in [his] possession” does not raise a triable issue of fact, as it does not “demonstrate that [plaintiff] had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 2022 NY Slip Op 50623[U], *1-2; see 11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 2019 NY Slip Op 50576[U], *1). To the extent plaintiff argues that the verification requests were improper since they were issued after plaintiff had appeared for an examination under oath (EUO), this argument lacks merit, as the EUO pertained to claims for a different assignor, and was held five months before the claims at issue were submitted.

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

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. The Law Offices of “Shay” Shailesh Deshpande, LLC (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lance P. Evans, J.), entered February 26, 2020. The order granted plaintiff’s motion to vacate the dismissal of the action, which dismissal had been based on plaintiff’s failure to proceed at trial, and to restore the action to the trial calendar.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion to vacate the dismissal of the action, which dismissal was based on plaintiff’s failure to proceed at trial (see Uniform Rules for NY Civ Ct [22 NYCRR] § 208.14 [b] [2]), and to restore the action to the trial calendar.

“Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal ‘it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action’ ” (SZ Med., P.C. v Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Contrary to defendant’s argument on appeal, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had demonstrated a reasonable excuse for its default, as plaintiff’s witness was out of the country at the time of the trial. [*2]Contrary to defendant’s further argument, plaintiff demonstrated that it has a meritorious cause of action (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant’s remaining contentions lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. Lewin & Baglio, LLP (Michael Nathan and William Benson of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated August 1, 2022, deemed from a judgment of that court entered October 24, 2022 (see CPLR 5512 [a]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,018.77.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,018.77. At the outset of the trial, the parties stipulated that the sole issue for trial was whether the services at issue were medically necessary.

In a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Dayan [*2]v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Here, the record supports the determination of the Civil Court that, based upon its assessment of the credibility of the expert witnesses and the proof adduced at trial, plaintiff sufficiently established by a preponderance of the evidence that the services at issue were medically necessary. Consequently, we find no basis to disturb the Civil Court’s findings.

Accordingly, the judgment is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 2, 2021. 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 January 2018, plaintiff Horizon P.T. Care, P.C. (Horizon) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover assigned first-party no-fault benefits for services it rendered to its assignor for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. After issue was joined, Horizon moved for, among other things, summary judgment. State Farm cross-moved for summary judgment dismissing the complaint on the separate grounds that Horizon had failed to appear for duly scheduled examinations under oath (EUOs), and that four of Horizon’s causes of action were barred by a declaratory judgment issued by the Supreme Court, Nassau County, in a December 2015 declaratory judgment action commenced by State Farm against Horizon in regard to the same March 2015 accident. Following Horizon’s default in appearing in the Supreme Court action, judgment was entered in July 2016, which declared that “Horizon . . . has no right to receive payment for the bills submitted to STATE FARM and listed in Exhibit ‘1’ of the . . . summons and verified complaint.” By order entered August 2, 2021, the Civil Court denied Horizon’s motion and granted State Farm’s cross motion for summary judgment dismissing the complaint on the ground that State Farm had established that Horizon failed to appear for duly scheduled EUOs.

State Farm’s cross-moving papers in the Civil Court sufficiently established that the assignor, claims, date of loss and dates of service relevant to Horizon’s first, third, fourth, and seventh causes of action in the case at bar are the same as those referenced in the Supreme Court declaratory judgment action. For the reasons stated in Horizon P.T. Care, P.C. v State Farm [*2]Mut. Auto. Ins. Co. (— Misc 3d —, 2023 NY Slip Op 50295 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), those causes of action were barred under the doctrine of res judicata, thereby obviating any need for this court to independently review them. The Civil Court thus properly granted the branches of State Farm’s cross motion seeking summary judgment dismissing those causes of action, albeit on grounds different from those relied upon by the Civil Court.

With respect to Horizon’s remaining causes of action—the second, fifth, and sixth—contrary to Horizon’s contention, the affidavits of State Farm’s employees were sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of State Farm’s cross motion seeking summary judgment dismissing those causes of action.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Hollander Legal Group , P.C. (Allan S. Hollander 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 (Sharon Bourne-Clarke, J.), dated July 22, 2022. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered April 10, 2018 through May 23, 2018.

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 for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order entered July 22, 2022, insofar as appealed from, the Civil Court denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered April 10, 2018 through May 23, 2018.

The Civil Court also found, in effect pursuant to CPLR 3212 (g), that defendant had established the proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for EUOs scheduled on June 8, 2018 and September 14, 2018. The Civil Court further found that there was an issue of fact as to whether an EUO scheduled to be [*2]held between those dates, on July 13, 2018, was mutually rescheduled, and therefore whether defendant’s September 17, 2018 denials of the claims for services rendered April 10, 2018 through May 23, 2018 were timely. In other words, defendant’s entitlement to summary judgment is dependent upon whether plaintiff’s second nonappearance at a scheduled EUO, triggering the requirement to pay or deny the claims within 30 days thereof (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., 77 Misc 3d 15 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., 77 Misc 3d 129[A], 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), occurred on July 13, 2018 or September 14, 2018.

“A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50621[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In their appellate briefs, each party contended that the July 13, 2018 EUO was not mutually rescheduled, and the record reflects that, while plaintiff’s counsel requested that it be rescheduled for September 14, 2018, defendant’s counsel, instead of agreeing to such a request, proceeded with the scheduled July 13, 2018 EUO and placed a statement on the record documenting the nonappearance. Defendant’s denial of claim forms were based, in part, on the failure of plaintiff to appear for the July 13, 2018 EUO. Thus, as the parties argue, the record establishes that the July 13, 2018 EUO was not mutually rescheduled.

Defendant contends that although its September 17, 2018 denials were issued well after 30 days had passed from plaintiff’s second nonappearance on July 13, 2018 (see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]), its denials were nonetheless timely. Defendant notes in its brief that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]), and argues that it was abiding by that principle because it accommodated plaintiff’s request to schedule an EUO to be conducted on September 14, 2018. Thus, defendant contends, the facts herein are distinguishable from Quality Health Supply Corp. (2020 NY Slip Op 51226[U]). Defendant’s argument has previously been considered by this court and rejected (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., 77 Misc 3d 15; FJL Med. Servs., P.C. v Nationwide Ins., 2022 NY Slip Op 51213[U]).

As defendant has not demonstrated that its September 17, 2018 denials were timely, it has not established that it is not precluded from raising plaintiff’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Thus, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered April 10, 2018 through May 23, [*3]2018 was properly denied.

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

BUGGS, J.P., and OTTLEY, J., concur.

VENTURA, J., taking no part.

Decided on March 24, 2023

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated April 12, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In January 2018, plaintiff Horizon P.T. Care, P.C. (Horizon) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover assigned first-party no-fault benefits for services Horizon rendered to its assignor for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. Defendant moved for summary judgment dismissing the complaint on the ground that the Civil Court action was barred by a declaratory judgment issued by the Supreme Court, Nassau County, in a December 2015 declaratory judgment action commenced by State Farm against Horizon in regard to the same March 2015 accident. Following Horizon’s default in appearing in the Supreme Court action, a judgment was entered in July 2016, which declared that “Horizon . . . has no right to receive payment for the bills submitted to STATE FARM and listed in Exhibit ‘1’ of the . . . summons and verified complaint.” Plaintiff opposed the motion in the Civil Court and cross-m[*2]oved for summary judgment. The Civil Court, by order dated April 12, 2021, granted defendant’s motion and denied the cross motion.

“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 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). ” ‘A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised . . . in the prior action’ ” (Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2020], quoting Eaddy v US Bank N.A.,180 AD3d 756, 758 [2020]; see North Val. Med., P.C. v Permanent Gen. Assur. Corp., 74 Misc 3d 127[A], 2022 NY Slip Op 50048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Defendant demonstrated that the assignor, date of loss, and dates of service in the Supreme Court action were identical to those listed in the complaint in this action. Moreover, the affidavit of defendant’s claims specialist adequately explained that the monetary amounts for certain claims differed between the complaints in the two actions due to mathematical errors in plaintiff’s claim forms and demonstrated that the charges were actually the same. Thus, contrary to plaintiff’s argument, defendant established that the claims at issue in this action are the same as those referenced in the Supreme Court declaratory judgment, which rendered a final adjudication of those claims (see Ciraldo, 140 AD3d at 913). Consequently, this action was barred under the doctrine of res judicata and the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), since any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.

Decided on March 3, 2023

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