Decided on May 14, 2021

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

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 23, 2019. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is denied.

Plaintiff commenced this action in 2015 to recover assigned first-party no-fault benefits. Defendant failed to appear in the action, and, on February 8, 2016, a default judgment was entered upon plaintiff’s motion. Defendant thereafter served an answer by mail and moved to dismiss the complaint for lack of jurisdiction, or, in the alternative, to vacate the default judgment, extend defendant’s time to answer and compel plaintiff to accept the answer. Plaintiff opposed the motion. By order entered July 28, 2017, the Civil Court (Andrew Borrok, J.) granted defendant’s motion to the extent of vacating the default judgment, stating that the “answer served by defendant is deemed served and received by plaintiff.” On November 2, 2017, defendant served plaintiff with a 90-day demand to file a notice of trial, which demand plaintiff rejected as premature. On February 1, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint on the ground that plaintiff had failed to prosecute the action. Plaintiff opposed and now appeals from an order of the Civil Court entered January 23, 2019 granting defendant’s motion.

A court may dismiss an action for failure to prosecute under CPLR 3216 only if the statutory preconditions to dismissal are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Alli v Baijnath, 101 AD3d 771 [2012]; Neary v Tower Ins., 94 AD3d 723 [2012]). In the instant case, as defendant moved to dismiss the complaint in February 2018, before the expiration of one year after the Civil Court had deemed defendant’s answer served as [*2]of July 28, 2017, defendant failed to satisfy a statutory precondition to dismissal of the complaint (see CPLR 3216 [b] [2]; Madigan v Crompton, 45 AD3d 650 [2007]). Consequently, there was no basis for the Civil Court to grant defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

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

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro and Susan Eisner of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

First Care Medical Equipment, LLC (First Care) commenced this action against Encompass Insurance (Encompass) to recover assigned first-party no-fault benefits for supplies which had been provided to Sophia Brooks, who was allegedly injured in an accident on August 4, 2014. Before First Care commenced this action, Encompass had commenced a declaratory judgment action in the Supreme Court, New York County, against First Care, among other providers, alleging, insofar as is relevant, that First Care had failed to appear for duly scheduled examinations under oath. Sophia Brooks was not a named defendant in the declaratory judgment action. After the providers failed to appear in the Supreme Court action, Encompass moved in the Supreme Court for a default judgment. The Supreme Court issued a declaratory judgment, dated April 3, 2018, declaring that Encompass is “not obligated to provide any coverage, reimbursements or pay any invoices, sums or funds to First Care . . . for any and all no-fault related services for which claims/bills have been or may in the future by submitted by [First Care] to [Encompass] for which an Examination Under Oath of . . . First Care . . . was requested and . . . First Care . . . failed to appear.”

Thereafter, Encompass moved in the Civil Court for summary judgment dismissing First Care’s complaint, contending that the Civil Court action is barred by the declaratory judgment. First Care opposed the motion and cross-moved for summary judgment. By order entered April 5, 2019, insofar as relevant to this appeal, the Civil Court denied defendant’s motion.

The doctrine of res judicata, or claim preclusion, may be invoked where a party seeks to [*2]relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in the prior litigation by a party or those in privity with a party (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc 3d 145[A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). As the Civil Court correctly found, defendant failed to establish that the services at issue are ones for which an EUO had been timely requested and plaintiff failed to appear. Consequently, defendant did not meet its burden of demonstrating that this action is barred by res judicata based on the declaratory judgment, and, thus, its motion was properly denied.

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

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Buiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered July 23, 2018. The order, insofar as appealed from, denied the branches of defendant’s motion seeking leave to reargue or renew plaintiff’s prior motion, made pursuant to CPLR 3126, to preclude defendant from offering evidence at trial, which had been determined in an order of that court (Odessa Kennedy, J.) entered January 30, 2018, or, in the alternative, seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial.

ORDERED that the order entered July 23, 2018, insofar as appealed from, is reversed, without costs, the branch of defendant’s motion seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial is granted, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 603, to sever the first cause of action from the remaining four causes of action. Plaintiff opposed the motion and cross-moved to compel discovery or preclude defendant from offering evidence at trial. By order entered August 17, 2016, the Civil Court (Steven Z. Mostofsky, J.) denied defendant’s motion and granted plaintiff’s unopposed cross motion to the extent of compelling defendant to provide discovery “within 60 days of the date of the order or be precluded.” By decision and order dated October 14, 2016, this court granted defendant’s motion for a stay pending appeal of the August 17, 2016 order, but provided that, if defendant’s appeal was not perfected by January 6, 2017, this “court, on its own motion, may vacate the stay, or [plaintiff] may move to vacate the stay on three days’ notice.” Defendant was unable to perfect the appeal by January 6, 2017 because the clerk of the Civil Court did not file [*2]the return as required by CCA 1704 (b). Nevertheless, the stay imposed by this court’s October 14, 2016 decision and order was not vacated until October 18, 2019. Meanwhile, immediately upon learning that the papers necessary to perfect its appeal were missing from the Civil Court’s file, defendant moved to deem copies of the papers to be originals. On October 3, 2017, plaintiff moved to preclude defendant from offering evidence at trial. By order entered January 30, 2018, the Civil Court (Odessa Kennedy, J.) granted both unopposed motions.

Defendant then made the instant motion for leave to reargue or renew plaintiff’s motion to preclude defendant from offering evidence at trial, or, in the alternative, to vacate so much of the January 30, 2018 order as had granted plaintiff’s preclusion motion. By order entered July 23, 2018, the Civil Court (Sharon Bourne-Clarke, J.) denied defendant’s motion, finding that “defendant failed to demonstrate that there was a stay order in effect that prevented [the Civil Court] from issuing its January 30, 2018 order.”

The branch of defendant’s motion seeking leave to reargue or renew should have been denied on the ground that there was no opposition to plaintiff’s prior motion that could have been reargued or renewed (see Hudson City Sav. Bank v Bomba, 149 AD3d 704 [2017]). While defendant argues on appeal that so much of the January 30, 2018 order as granted plaintiff’s preclusion motion should be vacated pursuant to CPLR 5015 (a) (4), that argument lacks merit because the violation of a stay does not implicate subject matter jurisdiction within the meaning of CPLR 5015 (a) (4).

However, vacatur is appropriate in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith, 20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), since plaintiff’s preclusion motion, which resulted in the January 30, 2018 order, violated a stay of this court. Contrary to the Civil Court’s statement, it had enough information to conclude that there had been a stay in effect that precluded the instant motion.

Accordingly, the order entered July 23, 2018, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial is granted, and plaintiff’s motion is denied.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell and Mark Petre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Yolanda Deleon from the remaining causes of action.

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, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion, which, relying only on the pleadings, had sought, pursuant to CPLR 603, to sever the first cause of action, seeking to recover upon a claim for services rendered to Yolanda Deleon, from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of five accidents and that multiple defenses had been interposed in the answer. By order entered August 17, 2016, the Civil Court denied defendant’s motion.

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Here, the conclusion that resolution of the claim for services rendered to Yolanda Deleon will involve different questions of fact and law from the claims for services rendered to the other assignors is not compelled by the fact that the assignors were injured in separate [*2]accidents or by defendant’s pleading of 55 affirmative defenses (see Majestic Acupuncture, P.C., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U]). To the extent that defendant cites Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) to support the opposite conclusion, it should not be relied upon for the proposition that severance is warranted solely on the ground that no-fault claims arose out of multiple car accidents on different dates. The record in Premier demonstrated that the denial of each claim was based on the particular assignor’s failure to appear for scheduled independent medical examinations and, while omitted from the decision, that fact was the basis for this court’s determination.

In view of the foregoing, defendant did not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion. Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on April 9, 2021

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

Peter C. Merani, P.C. (Adam J. Waknine of counsel), for appellant-respondent. Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from by defendant, granted plaintiff’s motion to renew its prior motion to recalculate interest awarded in a judgment entered August 10, 2007, and, upon renewal, ordered that the interest awarded in that judgment be calculated at 2% per month compounded. The order, insofar as cross-appealed from by plaintiff, sua sponte provided that postjudgment interest would accrue at 9% annually pursuant to CPLR 5004.

ORDERED that the cross-appeal by plaintiff is dismissed; and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on August 10, 2007 awarding statutory no-fault interest from August 18, 2000 at a simple rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have that 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’s motion was denied on the ground that the court could not determine the relevant dates, and thus could not determine the appropriate rate of interest to apply.

Plaintiff moved pursuant to CPLR 2221 (e) for leave to renew its motion and, upon renewal, to have the no-fault interest awarded in the August 10, 2007 judgment recalculated at a [*2]compound rate. Plaintiff attached to its motion papers, among other things, claim forms showing that the treatments at issue had been rendered in May 2000. By order entered February 22, 2018, the Civil Court granted plaintiff’s motion, finding that plaintiff had now established the relevant dates and that plaintiff had a reasonable justification for its failure to submit the claim forms with its original motion, and ordered that the interest awarded in the judgment be calculated at a compound rate. In addition, the order sua sponte provided that postjudgment interest would accrue at 9% annually pursuant to CPLR 5004. Defendant appeals from so much of the order as granted plaintiff’s motion to renew and, upon renewal, ordered that the interest in the judgment be calculated at a compound rate, and plaintiff cross-appeals from so much of the order as, sua sponte, provided that postjudgment interest would accrue at 9% annually.

Plaintiff’s cross-appeal is dismissed, as the portion of the order which set forth a rate for postjudgment interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]), and we decline to grant leave to appeal.

Contrary to defendant’s argument, plaintiff established a reasonable justification for its failure to submit the claim forms in its original motion. Moreover, the record clearly demonstrates that the claims involved herein are all governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff’s motion to renew was properly granted, and, upon renewal, the Civil Court properly ordered that the interest awarded in the judgment be calculated at 2% per month compounded.

Accordingly, the order, insofar as reviewed, is affirmed.

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

Decided on March 26, 2021

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

Goldberg, Miller & Rubin (Eli Shmulik of counsel), for appellant. Law Office of Gabriel & Moroff, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 8, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action in the District Court of Suffolk County on July 11, 2018 to recover assigned first-party no-fault benefits for services that had been provided to its assignor, who was allegedly injured in a motor vehicle accident on November 17, 2017. The complaint stated that the claim number was C067157NY17. Defendant served an answer and, thereafter, commenced a declaratory judgment action in the Supreme Court, New York County, against the present provider, among others, and the provider’s assignor. By order and judgment entered on December 10, 2019, the Supreme Court granted, on default, a motion by the insurer herein for a default judgment against, among others, the present provider and its assignor, and ordered, adjudged and declared that the insurer has no duty to pay any no-fault benefits to the provider and its assignor arising out of “the November 17, 2017 collision referenced in the complaint (also known as claim number C067157NY17).” Relying upon the Supreme Court’s order and judgment, defendant moved in the District Court for summary judgment dismissing the complaint. Plaintiff opposed, and, by order dated July 8, 2020, the District Court denied defendant’s motion.

Contrary to the determination of the District Court, plaintiff’s action is barred under the doctrine of res judicata, as the declaratory order and judgment of the Supreme Court is a [*2]conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a 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 [2006]; Matter of Eagle Ins Co. v Facey, 272 AD2d 399 [2000]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court’s order and judgment, the District Court should have granted defendant’s motion, as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order and judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

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

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

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 an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2019. 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 appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff’s assignor failed to appear for the duly scheduled EUOs. More specifically, the court found, among other things, that “[a]lthough defendant ha[d] established that it mailed EUO scheduling letters to The Rybak [Law] Firm, PLLC and plaintiff’s assignor at the address stated on the NF-2, there is an issue of fact as to the assignor’s non-appearance for examinations under oath as defendant has not established that [the assignor] was represented by counsel.”

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a plaintiff’s assignor failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the assignor, that the assignor twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Contrary to the determination of the Civil Court, the affirmations of defendant’s counsel, as well as the transcripts of the EUOs, were sufficient to establish that plaintiff’s assignor had failed to appear for the EUOs. It is irrelevant whether plaintiff’s assignor was represented by counsel, as defendant was only required to mail the EUO scheduling letters to plaintiff’s assignor (see 11 NYCRR 65-3.5 [e]; 3.6 [b]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.

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

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