Decided on December 2, 2022

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

Decided on November 18, 2022

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. Goldberg, Miller & Rubin, P.C. (Lindsay A. Padover of counsel), for respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated October 13, 2021. The order granted a motion by defendant Unitrin Direct Insurance Company for summary judgment dismissing the complaint in its entirety and denied plaintiff’s cross motion for summary judgment.

ORDERED that, on the court’s own motion, the caption is amended to reflect the addition of Unitrin Direct Insurance Company as a party defendant, and the caption has been amended accordingly, and it is further,

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

Jules Francois Parisien, M.D., commenced this action against Kemper Insurance Company (Kemper) to recover assigned first-party no-fault benefits for services provided to Parisien’s assignor, Joshua David, who had allegedly been injured in an accident on October 25, 2016. Unitrin Direct Insurance Company (Unitrin) appeared in the action by serving and filing an answer in which it characterized itself as having been incorrectly sued as Kemper, thereby agreeing that the allegations in the complaint were properly asserted against it.

After the commencement of this action, Unitrin brought a declaratory judgment action in Supreme Court, New York County, against Parisien and David, among other parties, pertaining to the October 25, 2016 accident, and moved therein for summary judgment against Parisien, among other providers. In an order entered May 11, 2020, upon granting Unitrin’s motion for summary judgment against Parisien and other providers with respect to David, the Supreme Court declared that, because of David’s failure to comply with a condition precedent, Unitrin was not obligated to pay claims for reimbursement submitted by Parisien for services provided to David in connection with the October 25, 2016 accident. Unitrin thereafter moved in the Civil Court to dismiss the complaint “[p]ursuant to CPLR 3211 (a) (5) and 3212 . . . on the ground that plaintiff’s claim is barred by [the] doctrine of res judicata” based upon the Supreme Court order. Unitrin’s attorney also alleged in an affirmation in support of the motion that “plaintiff sued a non-existent entity, ‘Kemper Casualty Insurance Company,’ when the proper insurer is [Unitrin],” relying on an attached police report, and that “[o]n that basis alone” the complaint should be dismissed. Plaintiff cross-moved for summary judgment and opposed Unitrin’s motion. By order dated October 13, 2021, the Civil Court granted Unitrin’s motion to dismiss the complaint, finding that Unitrin was “the proper defendant in this action,” thereby, in effect, dismissing the complaint insofar as asserted against Kemper, and finding that the action, insofar as asserted against Unitrin based upon its answering the complaint, was barred by res judicata. The court further denied plaintiff’s cross motion.

Since Unitrin voluntarily appeared in the action and the Civil Court accepted Unitrin Direct Insurance Company as “the proper defendant in this action,” but the caption was not amended accordingly, on the court’s own motion, we amend the caption to reflect the addition of Unitrin Direct Insurance Company as a party defendant.

On appeal, the only issue raised by plaintiff with respect to so much of the Civil Court’s order as granted Unitrin’s motion is whether the May 11, 2020 Supreme Court order should have res judicata effect on this action, thereby warranting the dismissal of the complaint. Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in determining that Unitrin was the proper defendant, as Unitrin proffered sufficient evidence to support its contention that it is “the proper insurer” (cf. Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

“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]). Because Unitrin is the proper defendant in this action, the Civil Court correctly granted its motion, as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the [*2]declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; 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. v Republic W. Ins., 38 Misc 3d 1, 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

We reach no other issue.

Accordingly, the order is affirmed.

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

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. The Rybak Firm, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered February 9, 2021. The order, insofar as appealed from, 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 appear for duly scheduled examinations under oath (EUOs) and plaintiff cross-moved for summary judgment. In an order entered February 9, 2021, the Civil Court denied the motion and cross motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the scheduled EUOs. The Civil Court found that there was an issue of fact because the EUOs were scheduled to be held before plaintiff submitted the claims at issue and defendant did not schedule EUOs after these claims were submitted.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to appear, and that the insurer issued a timely denial of the claim(s) on that ground (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that, pursuant to CPLR 3212 (g), the Civil Court implicitly found to have been established.

Plaintiff’s contentions on appeal—that defendant could not deny plaintiff’s claims based upon plaintiff’s failure to appear for EUOs because such EUOs and nonappearances occurred prior to submission of the claims at issue, and that defendant needed to schedule additional EUOs after plaintiff submitted the claims at issue—lack merit (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2007]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

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

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

Decided on November 18, 2022

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

Decided on November 18, 2022

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

Decided on November 18, 2022

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

[*1]

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak and Maksim Leyvi of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla appeal from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered November 13, 2019. The judgment, upon an order of the same court entered October 9, 2019, granting that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, inter alia, declared that the plaintiffs have no duty to provide coverage for the subject no-fault claims.

Ordered that the judgment is affirmed, with costs.

In April 2017 and June 2017, within days of the defendants Jerry Noland and Franklin Blasco procuring automobile insurance policies, the vehicles for which the policies were issued were involved in two separate automobile collisions when they each came into contact with two separate taxicabs. In or around April 2018, the plaintiffs, National General Insurance Online, Inc., and National General Insurance Company, commenced this action against Noland, Blasco and other individuals involved in the collisions, as well as, among others, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla (hereinafter collectively the medical provider defendants), alleging, inter alia, that the collisions were intentional. After the Supreme Court granted the plaintiffs’ motion for leave to enter a default judgment against, among others, the individuals involved in the two collisions, the plaintiffs moved, among other things, for summary judgment on the complaint insofar as asserted against the medical provider defendants, arguing, inter alia, that they are not obligated to pay no-fault claims submitted to them by the medical provider defendants in connection with the collisions. In an order entered October 9, 2019, the Supreme Court granted that branch of the motion. A judgment was entered November 13, 2019. The medical provider defendants appeal. We affirm.

[*2] The medical provider defendants failed to sustain their burden of demonstrating that the branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against them was premature (see CPLR 3212 [f]; Shah v MTA Bus Co., 201 AD3d 833 [2022]). Further, an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]), and here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating, through admissible evidence, that the subject collisions were intentionally caused or staged (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2003]; cf. Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691 [2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795 [2015]). In opposition, the medical provider defendants failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged. Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the medical provider defendants. Barros, J.P., Brathwaite Nelson, Chambers and Wan, JJ., concur.

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 5, 2018. The order, in effect, denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered March 17, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 17, 2017 is granted.

This action by a provider to recover assigned first-party no-fault benefits for a claim submitted to defendant on or about February 9, 1999, arising from an accident that occurred on September 24, 1998, was settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 17, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple 2% per month rate. Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from an order of the Civil Court which, in effect, denied its motion.

Plaintiff correctly argues that the claim involved herein is governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest (see 11 NYCRR 65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]). Consequently, plaintiff’s motion should have been granted. We note that, contrary to the statement of the Civil Court, postjudgment interest in a no-fault action [*2]is governed by Insurance Law § 5106 and its implementing regulations, not the CPLR (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 17, 2017 is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

Marshall & Marshall, PLLC (Frank D’Esposito and David Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 6, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC Insurance Company) appeals from an order of the District Court dated July 1, 2021 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

Defendant established its prima facie entitlement to summary judgment by submitting evidence demonstrating that it timely denied plaintiff’s claim submitted in January 2018 for no-fault benefits, on the ground of untimeliness, as the claim was submitted more than 45 days after the date services were rendered (see 11 NYCRR 65-1.1) and that its denial informed plaintiff that it could excuse the delay if plaintiff provided “reasonable justification” for the late [*2]submission (see 11 NYCRR 65-3.3 [e]; Stand-Up MRI of the Bronx, P.C. v MVAIC Ins. Co., 76 Misc 3d 128[A], 2022 NY Slip Op 50789[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Schottenstein Pain & Neuro, PLLC v MVAIC, 72 Misc 3d 131[A], 2021 NY Slip Op 50643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether it provided defendant with a reasonable justification for its untimely submission of the claim, as plaintiff failed to explain why, after learning that there was no insurance covering the accident, it first submitted the claim to the assignor’s personal health insurer instead of MVAIC, and why it took months before it first purportedly sent the claim to MVAIC (see Stand-Up MRI of the Bronx, P.C., 2022 NY Slip Op 50789[U]; Excel Surgery Ctr., LLC v MVAIC, 68 Misc 3d 134[A], 2020 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Mount Sinai Hosp. of Queens, 2014 NY Slip Op 50780[U]; see also Schottenstein Pain & Neuro, PLLC, 2021 NY Slip Op 50643[U]).

Plaintiff also failed to raise a triable issue of fact as to whether it actually first submitted the claim to MVAIC on October 17, 2017, the basis for plaintiff’s argument that defendant’s February 5, 2018 denial was untimely. To establish this mailing, plaintiff neither presented an affidavit by one with personal knowledge of the mailing nor provided sufficient practices and procedures of mailing, but rather relied on a certificate of mailing, which, under the circumstances presented, was insufficient to fill in the gaps in plaintiff’s proof of mailing.

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

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.