Decided on August 5, 2022

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 12, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff’s cross motion for summary judgment.

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 appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff’s cross motion for summary judgment.

To the extent plaintiff contends that defendant was not entitled to summary judgment dismissing the first through seventh and tenth causes of action, for the reasons stated in ACH Chiropractic, P.C., as Assignee of Ferril, Gabriel J. v Nationwide Ins. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1357 K C], decided herewith), plaintiff’s contentions lack merit.

With respect to plaintiff’s argument that it was entitled to summary judgment upon the eighth and ninth causes of action, the affidavit submitted by plaintiff’s owner was insufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, the branches of plaintiff’s cross motion seeking summary judgment on the eighth and ninth causes of action were properly denied.

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

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

Decided on August 5, 2022

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 28, 2019. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention on appeal, defendant established that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the [*2]first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Dodge & Monroy, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order granted defendant’s motion to vacate a judgment of that court entered April 13, 2018 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to vacate a judgment entered on April 13, 2018 upon defendant’s failure to appear or answer the complaint. In support of the motion, defense counsel alleged that an answer had been timely served but it contained a wrong index number, as the year was incorrectly written, which error was due to law office failure. Approximately two weeks later, a second answer, with the correct index number, was served on plaintiff’s counsel, after the time to answer had expired. Defendant alleged as a meritorious defense to the action that plaintiff was not entitled to recover on its claim, as the underlying automobile accident was staged. In addition, defendant filed a declaratory judgment action in February 2018 against, among others, plaintiff and its assignor, [*2]wherein, by order entered April 19, 2018, plaintiff was enjoined from all no-fault collection/reimbursement actions. In opposition to the motion, plaintiff’s counsel alleged that defendant failed to properly serve an answer, as the first answer contained the wrong year in the index number and both answers were served by mail to the wrong address. In reply, defendant failed to explain why the answers were mailed to plaintiff’s counsel’s prior address. The Civil Court granted defendant’s motion.

It is well settled that in order to vacate a default judgment based on excusable default, the defaulting party must demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). A court may, in the exercise of its discretion, accept law office failure as an excuse (see CPLR 2005). However, counsel “must submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]).

In the case at bar, defendant failed to provide a detailed explanation of its default. Defendant’s attorney merely stated that the wrong index number reflected on its initial answer was due to law office failure. However, defendant’s attorney did not explain why both answers were mailed to plaintiff’s counsel’s prior address. In view of the foregoing, we need not consider whether defendant established a meritorious defense to the action (see Levi v Levi, 46 AD3d 519 [2007]). In any event, contrary to defendant’s contention in the Civil Court, this action was not barred based upon the April 19, 2018 order in the Supreme Court declaratory judgment action enjoining plaintiff from proceeding in this action, as that order was entered after the default judgment had been entered herein, and terminated upon the entry of the declaratory judgment on May 20, 2019 and there was no disposition against plaintiff in that judgment (see generally DSD Acupuncture, P.C. v Metlife Auto & Home, 49 Misc 3d 153[A], 2015 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we find that the Civil Court improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 22, 2022

APPEARANCES OF COUNSEL

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

Gullo & Associates, LLC (Kristina O’Shea of counsel) for respondent.

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

Jules Francois Parisien, M.D., commenced this action against Kemper Insurance Company to recover assigned first-party no-fault benefits for medical services provided to his assignor, Jeremy Jagdeo, as a result of injuries Jagdeo allegedly sustained in an automobile accident on June 17, 2013. In its answer to the complaint, dated April 21, 2016, defendant identified itself as Unitrin Advantage Insurance Company (Unitrin). Before Parisien commenced this action, a declaratory judgment action had been commenced in Supreme Court, New York County, by Unitrin against Parisien, eight other providers, and the assignor herein, Jagdeo, alleging that Jagdeo had breached the terms of the insurance policy in question by failing to appear for duly scheduled independent medical examinations. Parisien appeared and interposed an answer in the declaratory judgment action. In an order entered September{**76 Misc 3d at 20} 11, 2017, the Supreme Court, upon granting an unopposed motion by Unitrin for summary judgment, declared [*2]that Parisien and five other providers were “not entitled to no-fault coverage for the motor vehicle accident that occurred on June 17, 2013 involving Jeremy Jagdeo.”

Plaintiff moved in the Civil Court for summary judgment, and defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. By order entered August 10, 2021, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Collateral estoppel, or issue preclusion, precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While “[a]n issue is not actually litigated if, for example, there has been a default” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), “ ’collateral estoppel may be properly applied to default judgments where the party against whom preclusion is sought appears in the prior action, yet willfully and deliberately refuses to participate in those litigation proceedings, or abandons them, despite a full and fair opportunity to do so’ ” (Miller v Falco, 170 AD3d 707, 709 [2019], quoting Matter of Abady, 22 AD3d 71, 85 [2005]). The party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51289[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D’Arata, 76 NY2d at 664; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Here, defendant established that the issue of whether plaintiff was entitled to receive no-fault benefits in connection with the June 17, 2013 accident involving Jagdeo was identical{**76 Misc 3d at 21} to the issue previously decided in the declaratory judgment action. The order in the declaratory judgment action indicates that Jagdeo was not entitled to receive no-fault benefits without regard to who the provider might be. Although plaintiff herein did not submit opposition to the motion giving rise to the order in the declaratory judgment action, he did appear and answer the complaint in that action. Therefore, plaintiff failed to establish that he did not receive a full and fair opportunity to litigate in the declaratory judgment action (see Reid v Reid, 198 AD3d 993, 994 [2021]; Miller, 170 AD3d at 709; David v State of New York, 157 AD3d 764, 765-766 [2018]; Matter of Abady, 22 AD3d at 85). Thus, defendant was entitled to summary judgment dismissing the complaint on the ground of collateral estoppel.

We reject plaintiff’s argument that defendant was required to establish privity between itself and Unitrin in order for the Civil Court complaint to be dismissed based upon the order in the declaratory judgment action. Privity between the party seeking to invoke the doctrine and a party to the prior action is an element of res judicata (see Matter of Hunter, 4 NY3d 260, 269[*3][2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]), not collateral estoppel (see B. R. DeWitt, Inc. v Hall, 19 NY2d 141, 147-148 [1967]; Windowizards, Inc. v S & S Improvements, Inc., 11 Misc 3d 128[A], 2006 NY Slip Op 50310[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). We note that the Civil Court, in granting defendant’s cross motion, did not specifically rely on res judicata.

We further note that, while defendant failed to raise the affirmative defense of collateral estoppel in its April 21, 2016 answer, defendant had no basis to assert that defense before September 11, 2017, when the order in the 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 September 11, 2017, we deem defendant’s answer amended to assert the affirmative defense of collateral estoppel (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]; Active Chiropractic, P.C. v Allstate Ins., 58 Misc 3d 156[A], 2018 NY Slip Op 50201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). {**76 Misc 3d at 22}In any event, “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, 2016 NY Slip Op 50096[U]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Buggs, JJ., concur.