Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 6, 2015. The order granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for leave to renew its prior motion for summary judgment, which had been denied by an order of the same court (Larry Love, J.) entered March 7, 2013.

ORDERED that the order entered May 6, 2015 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for a stay, arguing that there was a question as to whether plaintiff’s assignor had been injured during the course of his employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). In an order entered March 7, 2013, the Civil Court (Larry Love, J.) denied plaintiff’s motion and granted defendant’s cross motion, finding that, since there was an issue of fact as to whether the accident had occurred in the course of the assignor’s employment, Board resolution was required. The order further stated that should the matter not be filed with the Board “within 90 days of this order, the action may be dismissed, absent any good cause from the plaintiff.”

Approximately 21 months later, defendant moved to dismiss the complaint based upon plaintiff’s failure to comply with the Civil Court’s March 7, 2013 order, i.e., to demonstrate by June 7, 2013 (90 days from the date of the court’s order) that an application to the Board had been made. Plaintiff cross-moved for leave to renew its motion for summary judgment based on “new facts not offered on the prior motion that would change the prior determination (CPLR 2221 [e] [2]).” In support of renewal, plaintiff offered, among other things, an affidavit by a paralegal of plaintiff’s counsel’s firm, who had requested that a Board employee conduct a search of plaintiff’s assignor’s name in the Board’s database, which found no record of plaintiff’s assignor having made an application for workers’ compensation benefits. From this “new evidence,” plaintiff concluded that the matter was not subject to or covered by the Workers’ Compensation Law and that there was no Board jurisdiction. Plaintiff reasoned that since it had demonstrated in its prior motion that it was entitled to summary judgment, defendant was responsible for payment of plaintiff’s claims for assigned no-fault benefits.

In an order entered May 6, 2015, from which plaintiff appeals, the Civil Court (Terrence C. O’Connor, J.) granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross [*2]motion for leave to renew its prior motion for summary judgment. We affirm.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33). Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits (see A. B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Since it cannot be said that the alleged “new facts” offered by plaintiff would have changed the prior determination, and since plaintiff did not show good cause why the complaint should not be dismissed, the Civil Court properly denied plaintiff’s cross motion for leave to renew and granted defendant’s motion to dismiss the complaint.

Accordingly, the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decided on January 20, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 23, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedules. The Civil Court granted defendant’s motion in its entirety. As limited by its brief, plaintiff appeals from so much of the Civil Court’s order as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules.

The record reflects that plaintiff submitted three claim forms to defendant which included charges for 21 sessions of moxibustion, under code 97039, which is described as “Unlisted modality (specify type and time if there was constant attendance)” and for one session of acupressure, under code 99199, which is described as “Unlisted special service, procedure or report.” The workers’ compensation fee schedules do not assign a relative value to either of those codes, but instead have assigned them a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff did not provide such documentation with its claim forms and defendant did not, within 15 business days of its receipt of the claim forms, request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). As defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules, defendant was not entitled to summary judgment dismissing so much of the complaint as sought [*2]to recover for services rendered under those codes (see Gaba Med., P.C. v Progressive Specialty Ins. Co., 36 Misc 3d 139[A], 2012 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules are denied.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 28, 2015. 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 providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage for the accident which allegedly occurred on February 13, 2013. By order entered May 28, 2015, the Civil Court granted defendant’s motion.

In support of its summary judgment motion, defendant submitted, among other things, the transcript of the examination under oath of the driver of the insured vehicle. Contrary to plaintiffs’ contention, this transcript was properly considered by the Civil Court because, although it was not signed by the driver, it was certified (see Zalot v Zieba, 81 AD3d 935 [2011]; cf. Lifex Med. Care, P.C. v Safeco Natl. Ins. Co., 32 Misc 3d 126[A], 2011 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). During his examination under oath, the driver testified that he had rented the insured vehicle, which he drove as a livery vehicle, that the assignors had been passengers in his vehicle on February 13, 2013, and that the vehicle had not been involved in an accident on that date. Also, after the passengers in his vehicle called the police and reported that an accident had taken place, the driver told the responding police officer that there had been no accident.

Moreover, contrary to plaintiffs’ contention on appeal, the doctrine of collateral estoppel does not apply in the case at bar since plaintiffs failed to show that the identical coverage issue was necessarily decided in the prior actions to which plaintiffs referred, that such determinations are decisive of the present action, and that there was a full and fair opportunity to contest the issue of coverage in the prior actions (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665-666 [1990]). Plaintiffs’ remaining contentions lack merit.

In view of the foregoing, defendant established its prima facie entitlement to summary [*2]judgment dismissing the complaint by showing that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and plaintiffs failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decided on January 5, 2017

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the rescission of the automobile insurance policy. The Civil Court, by order dated July 30, 2014, denied both motions finding, pursuant to CPLR 3212 (g), that both parties had established their prima facie cases and that the only triable issue of fact is whether the assignor had the intent to misrepresent on his insurance application.

On appeal, defendant contends that Florida law controls and, pursuant to said law, an insurer does not have to prove intent to misrepresent in order to void a policy ab initio; rather, an insurer only has to show that the policy was validly rescinded pursuant to the laws of Florida.

At the time of the accident at issue, which occurred in New York, the vehicle was insured by defendant under a Florida automobile insurance policy, and was being driven by the policyholder, plaintiff’s assignor. After defendant’s investigation revealed that, at the time the insured applied for automobile insurance, plaintiff’s assignor did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

Inasmuch as defendant’s cross motion papers failed to demonstrate that a rescission notice was sent to the insured, or that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant failed to show, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire [*2]and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint was properly denied.

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

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decided on December 16, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered February 25, 2015. The order denied 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 granted.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for supplies it provided to its assignor for injuries he had sustained in a motor vehicle accident on February 27, 2012, to which claim defendant assigned claim number 1126518. Prior to the commencement of this action, defendant instituted a declaratory judgment action in the Supreme Court, New York County, against plaintiff’s assignor and various medical providers, including plaintiff herein. In an order dated April 25, 2014, the Supreme Court granted, on default, the motion therein for a declaratory judgment, which order stated, among other things, “that, for the purpose of claims submitted by GABRIEL SANFORD, ACTIVE CARE MEDICAL SUPPLY CORP. . . . , defendant GABRIEL SANFORD is not an eligible injured person entitled to no-fault benefits under AMERICAN COMMERCE INSURANCE COMPANY insurance policy ACPA-000653448, Claim No.: 1126518, and [American Commerce Insurance Company] is not obligated to pay for claims seeking no-fault benefits for services or goods provided to GABRIEL SANFORD under this claim number.”

In July 2014, defendant, among other things, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the April 25, 2014 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered February 25, 2015, the Civil Court denied defendant’s motion without prejudice to renewal upon proper papers. The court found that it could not consider the Supreme Court declaratory judgment order annexed to the moving papers because defendant had not included a notice of entry for that order.

Contrary to the determination of the Civil Court, it should have reviewed and considered the Supreme Court declaratory judgment order even though defendant did not provide a notice of entry for it “in view of the binding and conclusive effect of the order” (Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc 3d 143[A], 2014 NY Slip Op 51324[U], *1 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A review of the record establishes that the instant action is barred under the doctrine of res judicata by virtue of the Supreme Court order dated April 25, 2014 (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order issued by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

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

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Appeal, on the ground of inadequacy, from a decision after inquest of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), dated January 13, 2015, and from a judgment of the same court entered April 21, 2015. The judgment, entered pursuant to the decision after inquest, upon awarding plaintiffs the principal sum of $4,491.47, together with interest, costs and disbursements, failed to award plaintiffs statutory attorney’s fees.

ORDERED that so much of the appeal as is from the decision is dismissed on the ground that no appeal lies from a decision (see UCCA 1702); and it is further,

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate Property and Casualty Insurance Company only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Plaintiffs commenced this action in October 2014 to recover assigned first-party no-fault benefits for services that had been provided from February through July 2012, and statutory attorney’s fees thereon. Defendant Allstate Property and Casualty Insurance Company (Allstate) defaulted. Plaintiffs’ counsel subsequently admitted that defendant Edzer Louis-Jean had not been served with process. Plaintiffs, in effect, moved to enter a default judgment and submitted a proposed judgment to the City Court of Yonkers. Following an inquest, the City Court awarded a default judgment to plaintiffs in the principal sum of $4,491.47, together with interest and statutory costs and disbursements. In its decision, the court noted that plaintiffs had discontinued the action as against Edzer Louis-Jean individually. The court denied the branch of plaintiffs’ motion which sought statutory attorney’s fees, finding that plaintiffs had failed to [*2]demonstrate their “statutory entitlement to attorney’s fees . . . and failed to submit a detailed affidavit” of the services rendered by plaintiffs’ counsel. A judgment was entered against defendants Allstate and Edzer Louis-Jean, awarding plaintiffs the principal sum of $4,491.47 on their claims, plus statutory interest, costs, and disbursements. Plaintiffs appeal from the decision and judgment, arguing that the court erred in failing to award them statutory attorney’s fees.

So much of the appeal as is from the decision is dismissed, as no appeal lies from a decision (see UCCA 1702). The issues raised on the appeal from the decision are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to the determination of the City Court, attorney’s fees, as sought here by plaintiffs, are not discretionary or dependent upon the actual value of the services rendered by plaintiffs’ counsel. Rather, the attorney’s fees to which plaintiffs are entitled are statutory (Insurance Law § 5106 [a]), and, pursuant to the no-fault regulations in effect at the relevant time, equaled “20 percent of the amount of first-party benefits, plus interest thereon, . . . subject to a maximum fee of $850” (11 NYCRR 65-4.6 [former (e)]; see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

In the present case, as the City Court awarded a default judgment in favor of plaintiffs for first-party no-fault benefits in the principal sum of $4,491.47, plaintiffs are entitled to the maximum statutory attorney’s fees of $850 (cf. 11 NYCRR 65-4.6 [d] [effective July 23, 2014, the maximum possible award of attorney’s fees in this type of action was increased to $1,360]). However, while the decision of the City Court recognized that plaintiffs had discontinued the action as against Edzer Louis-Jean, the judgment named both Allstate and Louis-Jean as debtors. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Kim v Schiller, 112 AD3d 671, 674 [2013]; see Green v Morris, 156 AD2d 331 [1989]). Such an inconsistency may be corrected on appeal, pursuant to CPLR 5019 (a) (see Kim, 112 AD3d at 674; Green, 156 AD2d at 331; Clifford v Nationwide Custom Servs., Inc., 51 Misc 3d 132[A], 2016 NY Slip Op 50459[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Accordingly, the judgment is reversed and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Brands, J.P., Marano and Tolbert, JJ., concur.

Decided on December 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS