Decided on February 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1297 K C

Abrams, Cohen & Associates, P.C. (Frank Piccininni), for appellant. Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.

Plaintiff commenced this action on February 8, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer on March 5, 2013. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred by virtue of an order entered on May 13, 2014 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that defendant herein was not obligated to provide coverage for no-fault claims arising out of the accident in question, and that plaintiff herein and its assignor were not entitled to reimbursement for services rendered to the assignor with respect to that accident. Plaintiff did not oppose defendant’s cross motion in the Civil Court. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion, finding that [*2]defendant had failed to raise the defense of res judicata in its answer.

Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue had been joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court, in effect, to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).

We note that, while defendant failed to raise the affirmative defense of res judicata in its answer, defendant had no basis to assert that defense before May 13, 2014, when the order in the Supreme Court declaratory judgment action was entered (see Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While the better practice would have been for defendant to move to amend its answer after May 13, 2014, nevertheless, defendant’s answer may be deemed amended to assert the affirmative defense of res judicata (see Barrett v Kasco Constr. Co., 84 AD2d 555 [1981], affd 56 NY2d 830 [1982]). We note that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]).

In light of the Supreme Court’s order in the declaratory judgment action, the Civil Court should have granted defendant’s cross motion (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.

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

Decided on February 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-912 K C

Law Offices of Buratti, Rothenberg & Burns (Elke E. Mirabella and Joelle Roberts), for appellant. Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 18, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

Prior to the commencement of this action by a provider to recover assigned first-party no-fault benefits, defendant brought a declaratory judgment action in the Supreme Court, New York County, against, among others, plaintiff herein and its assignor. Thereafter, defendant, asserting that plaintiff and the assignor had failed to answer the complaint, moved in the Supreme Court for, among other things, the entry of a default judgment. By order dated December 8, 2014, the Supreme Court stated that an unrelated branch of defendant’s motion was denied and that the “remainder of the motion [wa]s granted without opposition.” After the instant action was commenced in the Civil Court, plaintiff moved for summary judgment. Relying on the Supreme Court’s order, defendant cross-moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrines of res judicata and collateral estoppel. Defendant appeals from the order of the Civil Court entered November 18, 2015 which granted plaintiff’s motion and denied defendant’s cross motion.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment [*2]of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

With respect to defendant’s cross motion, as the December 8, 2014 Supreme Court order in the declaratory judgment action merely granted the branch of defendant’s motion for the entry of a default judgment against plaintiff and its assignor, but failed to make a statement declaring the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar (see Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is affirmed.

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

Decided on February 8, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ
2016-1038 S C

The Law Office of Gregory A. Goodman, P.C., (Gregory A. Goodman), for appellant. Law Offices of Daniel J. Tucker, (Daniel J. Tucker, Joshua Goldberg and Netanel BenChaim of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated April 19, 2016. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer or compel defendant to produce its no-fault examiner for a deposition.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,310.94 is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the District Court as granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer or compel defendant to produce its no-fault examiner for a deposition.

In support of its motion, defendant established that it had timely mailed letters scheduling an initial and follow-up independent medical examination (IME) (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the scheduled IMEs on January 9, 2014 and February 6, 2014 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s claim for $1,019.62 was received on March 17, 2014 and timely denied, based on the assignor’s failure to appear for IMEs, on April 3, 2014 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123); therefore, plaintiff has failed to establish a basis to disturb the portion of the order which granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim.

While defendant did not deny plaintiff’s $1,310.94 claim, which it had received on January 7, 2014, within 30 days of receipt of that claim or of the second IME nonappearance, defendant demonstrated, prima facie, that, upon receipt of that claim, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) and that it had timely denied the claim, based on the assignor’s failure to appear for IMEs, within 30 days of receiving the requested verification (see 11 NYCRR 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, as the affidavit submitted by plaintiff was sufficient to demonstrate the existence of an issue of fact regarding defendant’s mailing of its initial and follow-up requests for written verification, there is an issue of fact as to whether defendant’s time to pay or deny that claim was tolled by virtue of the pending verification requests and, thus, whether defendant’s denial of plaintiff’s $1,310.94 claim was timely. In light of the foregoing, plaintiff’s contention that the branch of its cross motion seeking summary judgment should have been granted lacks merit.

To the extent plaintiff asserts that the District Court should have granted the branches of plaintiff’s cross motion seeking to strike defendant’s answer or, in the alternative, compel defendant to produce its no-fault examiner for a deposition, plaintiff failed to demonstrate that it had requested a deposition in this action, as the affidavit of service for the deposition notice annexed to plaintiff’s cross motion is for a different case. Consequently, these branches of plaintiff’s cross motion were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the $1,310.94 claim is denied.

GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.

Decided on February 2, 2018

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

Decided on February 2, 2018

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

Decided on February 2, 2018

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

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 8, 2007. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $1,131.68. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgement interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,131.68 and, among other things, no-fault statutory prejudgment interest from January 8, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

No-fault statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accrue when the action is commenced (see 11 NYCRR 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [d]). While a significant amount of time elapsed between the commencement of this action and the trial, defendant did not adequately demonstrate to the Civil Court, and there was nothing in the record to indicate, the reason for the protracted delay or that it was plaintiff which had “unreasonably delay[ed]” the action (cf. Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, as there was no basis for the Civil Court to toll the accrual of no-fault statutory prejudgment interest, the judgment, insofar as appealed from, is affirmed.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang. Esq.), for appellant. Murray Hill Legal Services, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated February 24, 2015. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action in 2006 to recover assigned first-party no-fault benefits. Defendant defaulted in answering, and, more than seven years later, plaintiff moved for the entry of a default judgment. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court, in effect, denied the motion and cross motion but permitted defendant to submit an answer and directed plaintiff to file a notice of trial. Defendant appeals from so much of the order as denied its cross motion to dismiss the complaint.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and “demonstrate that the complaint is meritorious, failing which the court, . . . on motion, must dismiss the complaint as abandoned” (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Giglio v NTIMP, Inc., 86 AD3d 301 [2011]).

Here, plaintiff failed to establish a reasonable excuse for the delay (see Mattera v Capric, 54 AD3d 827 [2008]). Plaintiff’s counsel asserted only that, in 2006, there was a possible settlement entered into between the parties. This lone assertion, along with a 2006 letter referencing a purported settlement, is insufficient to establish a history of settlement discussions which could possibly excuse the seven-year delay (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783 [2008]). Moreover, plaintiff submitted “neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim” (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The complaint, attached to the motion, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (see Solano v Castro, 72 AD3d 932 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

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

Law Office of David O’Connor, P.C. (David O’Connor, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered October 15, 2015. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $2,670, awarded plaintiff no-fault statutory prejudment interest in the sum of only $1,082.24.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for a recalculation of the no-fault statutory prejudgment interest in accordance with this decision and order, and for the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on March 30, 2006. After a motion by plaintiff for summary judgment was denied by an order of the Civil Court entered June 8, 2007, plaintiff moved to compel defendant to appear for an examination before trial and provide responses to the interrogatories served by plaintiff. On December 18, 2007, the Civil Court denied plaintiff’s motion to compel but held that plaintiff could serve a second set of interrogatories within 45 days. On December 27, 2007, in accordance with the December 18, 2007 order, plaintiff served another demand for interrogatories upon defendant. Defendant did not serve a response to the demand for a second set of interrogatories, and plaintiff did not file a notice of trial until May 30, 2013. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However, the Civil Court held that plaintiff had [*2]unreasonably delayed the resolution of the case and that, as a result, no-fault statutory prejudgment interest would not accrue between the date the action had been commenced and the date the notice of trial had been filed. Plaintiff appeals from so much of the Civil Court’s judgment as failed to award plaintiff no-fault statutory prejudgment interest from the commencement of the action through January 27, 2008, as January 28, 2008 was the first day plaintiff could have made a motion based upon defendant’s failure to respond to the December 27, 2007 demand for interrogatories.

No-fault statutory prejudgment interest accrues upon overdue first-party no-fault benefits at the rate of two percent per month “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [a], [d]). While the court found that plaintiff was not entitled to the interest which had accrued between the commencement of the action on March 30, 2006 and the date plaintiff filed the notice of trial, May 30, 2013, plaintiff’s argument that the toll upon the accrual of interest should not begin until January 28, 2008, as plaintiff had not unreasonably delayed prosecution of the action prior to that date, is correct. Motions were made and discovery demands were served during the period between the commencement of the action and December 27, 2007, the date plaintiff served its second demand for interrogatories. Consequently, a motion by plaintiff to compel defendant to respond to the demand for interrogatories would have been premature prior to January 28, 2008 (see CPLR 2103 [a]; 3133 [a]; General Construction Law § 25-a). As a result, plaintiff is entitled to no-fault statutory prejudgment interest from the commencement of the action on March 30, 2006 through January 27, 2008.

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a recalculation of the interest pursuant to Insurance Law § 5106 (a) to include the no-fault statutory prejudgment interest which accrued from March 30, 2006 through January 27, 2008, and for the entry of an appropriate amended judgment thereafter.

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

Decided on January 24, 2018