Decided on July 2, 2021

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

Decided on July 2, 2021

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

Decided on July 2, 2021

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

Bryan Cave, LLP (Jennifer M. Jordan and Matthew Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 7, 2019. 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.

New Millennium Medical Imaging, P.C. (New Millennium) commenced this action to recover assigned first-party no-fault benefits, under claim number 3375202011, for medical services that it had provided to its assignors as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 13, 2011. Before New Millennium commenced this action, the insurer, Repwest Insurance Company (Repwest) had commenced a declaratory judgment action in the Supreme Court, New York County, against New Millennium, among other providers, and the assignors herein, alleging that Repwest had no duty to pay no-fault benefits to the named defendants therein under claim number 00341462-2011 with respect to an accident which had occurred on August 12, 2011.

After the providers and assignors failed to appear in the Supreme Court action, Repwest moved in the Supreme Court for an order granting Repwest leave to enter a default judgment, declaring that, because the providers had failed to appear at duly scheduled examinations under [*2]oath (EUOs), they were not entitled to reimbursement of no-fault claims arising out of an August 12, 2011 accident. The Supreme Court granted Repwest’s motion and declared that Repwest owes no duty to New Millennium and the other providers to pay no-fault claims “with respect to the August 12, 2011 collision referenced in the complaint.”

Thereafter, Repwest moved in the Civil Court for summary judgment dismissing New Millennium’s complaint on the ground that the action in the Civil Court is barred by the order in the declaratory judgment action. In support of its motion, Repwest submitted each assignor’s initial, signed application for no-fault benefits (NF-2), in which each assignor swore, under penalty of perjury, that the accident date for claim number 3375202011 was August 12, 2011. Repwest also submitted a transcript of an EUO of assignor Lionel Ames, who had testified that the accident occurred on August 12, 2011. (Repwest had also requested an EUO of the second assignor, but he failed to appear.) In addition, Repwest submitted a copy of a police accident report and letters of representation from the assignors’ attorneys, all of which set forth August 12, 2011 as the date of the accident. In a supporting affidavit, Repwest’s claims supervisor asserted that Repwest received these documents from the assignors’ respective attorneys, and that, before the Civil Court complaint was served, the only documents Repwest received for these assignors using the August 13th date instead of the August 12th date were claim forms (NF-3s) created by New Millenium, not by either of the assignors. The claims supervisor’s affidavit also explained that “Repwest assigned claim number 00337520-2011 for the BI (‘liability’) claims and claim number 00341462-2011 for the PIP (no-fault) claims” for the August 12th accident.

New Millennium opposed the motion, arguing only that, pursuant to the complaint, this action seeks reimbursement for claims arising out of an accident which occurred on August 13, 2011, the date which appears on the claim forms annexed to defendant’s motion papers, and that the Supreme Court order pertains to a different accident. By order entered November 7, 2019, the Civil Court denied defendant’s motion, finding that a triable issue of fact exists as to whether res judicata applies to the instant litigation.

We find that Repwest established, prima facie, that New Millenium’s assignors sought coverage for injuries arising from an August 12, 2011 accident that was the subject of the Supreme Court declaratory judgment action; that they did not seek coverage for any injuries arising from any accident that may have occurred on August 13, 2011; and that res judicata therefore bars the instant action. All of the evidence created by the people who were in the alleged accident uses the August 12th date. New Millenium’s submission of its own claim forms and its reliance on the allegations in its own complaint, which are not based upon personal knowledge as to the accident and which contradict the documents created and executed by the assignors themselves, assignor Ames’s sworn testimony and the police report, are insufficient to rebut Repwest’s showing. Indeed, rather than taking the position that a trial is required to determine the date of the accident at issue in this case, plaintiff’s trial and appellate counsel each had an ethical obligation to the court to inquire whether the August 13th date was a mere typographical error (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 3.1 Comment [2]; 3.3 Comment [10]).

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

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas 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 August 16, 2019. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking to dismiss the complaint.

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

This action by a provider to recover assigned first-party no-fault benefits was commenced by the filing of a summons and complaint on August 11, 2015 in Civil Court, Kings County. However, the summons indicated that the matter was to be heard in the Civil Court, Queens County, and required defendant to appear at the courthouse at 89-17 Sutphin Boulevard, Jamaica, New York. Defendant served an answer upon plaintiff on September 9, 2015, which listed the Civil Court, Queens County, as the venue in the caption, and the answer was allegedly filed there. Plaintiff thereafter moved for the entry of a default judgment against defendant, which motion was granted, without opposition, on December 3, 2018. A judgment in the total sum of $260.89 was entered on February 7, 2019.

Defendant moved to vacate the default judgment and to dismiss the complaint. In his affirmation in support, defense counsel stated, among other things, that the default judgment should be vacated and that plaintiff’s complaint “should be dismissed outright based on the deficiencies” on the face of the summons, the fact that plaintiff never modified its summons and [*2]complaint and the fact that the Civil Court, Kings County, does not have jurisdiction over this matter.

In opposition, plaintiff’s counsel argued that defendant failed to establish a reasonable excuse for its default or a meritorious defense.

In its reply affirmation, defense counsel argued that plaintiff’s “opposition papers do nothing to dispel the notion that its complaint must be dismissed.”

In an order entered August 16, 2019, the Civil Court granted the motion, vacated the default judgment and dismissed plaintiff’s complaint, as it was “fatally defective.”

As limited by its brief, plaintiff argues that so much of the August 16, 2019 order as dismissed the complaint should be reversed because dismissal of the complaint was not the proper remedy upon the vacatur of the default judgment. Rather, plaintiff should have been permitted to correct its error pursuant to CPLR 2001.

Plaintiff’s argument, that it should have been afforded an opportunity to amend the complaint pursuant to CPLR 2001, is unpreserved for appellate review, as plaintiff failed to raise the issue in opposition to defendant’s motion (see Gerschel v Christensen, 128 AD3d 455 [2015]; Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]).

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

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

Decided on May 28, 2021

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

Decided on May 21, 2021

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

Decided on May 21, 2021

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

Decided on May 21, 2021

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

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered May 4, 2018. The judgment, entered pursuant to a decision of that court dated November 16, 2017, after a nonjury trial, awarded plaintiff the principal sum of $3,695.34.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated November 16, 2017 is deemed a premature notice of appeal from the judgment entered May 4, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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 $3,695.34.

At the outset of the trial, the parties noted that, by a prior order, the issues for trial would be limited (see CPLR 3212 [g]) to defendant’s proof of timely mailing of the examination under oath (EUO) scheduling letters and the denial of claim forms. As defendant established that the EUO scheduling letters were timely mailed to plaintiff by first class mail, contrary to the Civil Court’s conclusion, it is irrelevant that defendant failed to establish that copies of such letters were also mailed to plaintiff by certified mail, return receipt requested (see Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 53 Misc 3d 142[A], 2016 NY Slip Op 51540[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In addition, the testimony of defendant’s no-fault claims examiner was sufficient to establish that the denial of claim forms were timely mailed (see St. Vincent’s Hosp. of Richmond [*2]v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff notwithstanding that the no-fault claims examiner did not have direct supervisory authority over defendant’s mail personnel (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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