Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 26, 2019. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In August 2013, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in September 2013. In April 2017, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On July 12, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint for want of prosecution. In opposition to the motion, plaintiff’s counsel’s calendar clerk submitted an affidavit wherein he stated that a notice of trial had been served upon defendant but it had not been filed with the court due to law office failure and that plaintiff had a meritorious cause of action. By order entered June 26, 2019, the Civil Court denied defendant’s motion, stating “[d]efendant was free to file the Notice of Trial it received or to have filed its own Notice of Trial at any juncture in this action.”

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med. P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff failed to file a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, defendant properly moved to dismiss the complaint. The Civil Court denied defendant’s CPLR 3216 motion on the ground that defendant could have filed its own notice of trial. This was improper because, while any party may file a notice of trial (see CCA 1301; CPLR 3402 [a]), defendant had no obligation to do so.

The affidavit submitted by plaintiff in opposition to defendant’s motion did not provide a detailed and credible explanation of the law office failure that had caused the attorney’s failure to file the notice of trial (see Premier Surgical Servs. P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Bayshore Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 141[A], 2017 NY Slip Op 51121[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). Under the circumstances presented, we find that plaintiff’s claim of law office failure (see CPLR 2005) did not rise to the level of a justifiable excuse (see Sacramone v Tunick, 54 AD2d 897 [1976]; see also Housen v Boston Mkt. Corp., 166 AD3d 593 [2018]).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

[*1]

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti, David M. Gottlieb, and Darya Klein of counsel), for appellants.

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

In an action, inter alia, for a judgment declaring that the plaintiff has no obligation to pay certain insurance claims, the defendants appeal from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered May 22, 2017. The order granted the plaintiff’s motion for a preliminary injunction restraining the defendants from enforcing against it any judgments obtained in certain related actions.

Ordered that the order is affirmed, with costs.

In March 2010, in response to various no-fault insurance collection actions commenced against it by the defendants, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) commenced this action seeking, inter alia, a judgment declaring that the professional corporations named as defendants in this action (hereinafter collectively the PC defendants) were not entitled to collect no-fault payments from it as they were unlawfully formed pursuant to New York law.

In November 2012, the defendants’ answer in this action was conditionally stricken unless they complied with certain discovery demands on or before January 7, 2013. The Supreme Court thereafter granted State Farm’s motion for leave to enter a default judgment against the defendants and entered judgment declaring that the PC defendants were unlawfully incorporated and were not entitled to collect no-fault benefits. The defendants appealed that order to this Court, which affirmed (see State Farm Mut. Auto. Ins. Co. v Anikeyeva, 130 AD3d 1007 [2015]).

In 2013, the defendant Andrey Anikeyeva pleaded guilty to federal charges involving health care fraud and mail fraud resulting from his role in operating acupuncture clinics via professional corporations which were not owned and controlled by a licensed acupuncturist as required by New York law. Anikeyeva was sentenced to a term of imprisonment of 31/2 years and ordered to pay restitution in excess of $4 million. Among the clinics involved in the fraudulent scheme was the defendant New Era Acupuncture, P.C. (hereinafter New Era).

In 2017, New Era attempted to enforce against State Farm a 2010 judgment New Era had obtained in a Civil Court action entitled New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (hereinafter the O’Neal action/the O’Neal judgment). In response, State Farm moved for [*2]a preliminary injunction restraining the defendants from enforcing against it any judgments obtained “in any underlying No-Fault action,” including the O’Neal judgment. The Supreme Court granted State Farm’s motion, and the defendants appeal.

“ ’Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff’s remedy lies exclusively in moving to vacate the judgment’ ” (McMahan v Belowich, 164 AD3d 1443, 1444 [2018], quoting DeMartino v Lomonaco, 155 AD3d 686, 688 [2017]; see Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]). However, “[a] cause of action for fraud and deceit will lie, even though perjury is present, where the perjury is merely a means to the accomplishment of a larger fraudulent scheme” (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d at 217; see McMahan v Belowich, 164 AD3d at 1444; Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 751-752 [2009]). In alleging a larger fraudulent scheme, the plaintiff must proffer more than conclusory and unsubstantiated allegations (see DeMartino v Lomonaco, 155 AD3d at 688; North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427, 428 [2005]).

Here, by proffering evidence of the federal prosecution against Anikeyeva, State Farm met its burden of demonstrating that the defendants obtained the O’Neal judgment as part of “ ’a larger fraudulent scheme’ ” (Specialized Indus. Servs. Corp. v Carter, 68 AD3d at 752, quoting Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d at 217), which was “ ’greater in scope than the issues determined’ ” in the O’Neal action (Specialized Indus. Servs. Corp. v Carter, 68 AD3d at 752, quoting Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533, 533 [2002]). Accordingly, the Supreme Court correctly determined that the exception to the general rule barring collateral attack applied in this case.

The defendants’ remaining contentions are without merit. Chambers, J.P., Brathwaite Nelson, Christopher and Zayas, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of and Karina Barska counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper 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 1, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.

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 an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.

To vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). The Civil Court found that defendant demonstrated both “a reasonable excuse and meritorious defense,” and, on appeal, plaintiff limits its argument to defendant’s excuse, specifically stating that it is unnecessary, under the circumstances presented, for this court to consider whether defendant demonstrated that it has a meritorious defense. “The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination” (Green Apple Mgt. Corp. v Aronis, 55 AD3d 669, 669 [2008]).

In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant’s affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant’s practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.

Plaintiff’s remaining appellate contentions are relevant only to the branch of defendant’s motion seeking to dismiss the complaint, which was denied. Plaintiff is not aggrieved thereby and defendant has not cross-appealed from it.

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

ALIOTTA, P.J., ELLIOT and TOUSSAINT, 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 (Rosemarie Montalbano, J.), dated September 18, 2019. 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 a provider to recover assigned first-party no-fault benefits, defendant 21st Century Insurance Company (21st Century) moved for summary judgment dismissing the complaint. In support of its motion, 21st Century submitted an order that had been entered on November 28, 2017 in a Supreme Court declaratory judgment action, which granted a motion brought by 21st Century, among other insurers, seeking a default judgment against the present plaintiff, among other providers. The annexed order found specifically that 21st Century and the other insurers were entitled to a default judgment on liability against the providers, but did not declare the rights of the parties. Plaintiff opposed defendant’s motion in the Civil Court. By order entered September 18, 2019, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint based upon a declaratory judgment that was entered in the Supreme Court on February 22, 2018 pursuant to the November 28, 2017 order. In response to the instant appeal by plaintiff, 21st Century submits the declaratory judgment, which declared, among other things, that 21st Century has no duty to pay any no-fault benefits to Noel E. Blackman in any current or future proceeding, because the provider is ineligible to collect no-fault benefits.

A court “may in general take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 [*2]AD3d 13 [2009]). In light of the Supreme Court’s declaratory judgment, of which we take judicial notice, we find no basis to disturb the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint under the doctrine of res judicata (see Wave Med. Servs., P.C. v Farmers New Century Ins. Co., 67 Misc 3d 137[A], 2020 NY Slip Op 50555[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; 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]). In view of the foregoing, we reach no other issue.

Accordingly, the order is affirmed.

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

Decided on July 30, 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 (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 6, 2018. 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.

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 had failed to appear for duly scheduled examinations under oath, and plaintiff cross-moved for summary judgment. By order entered December 6, 2018, the Civil Court denied the motion and cross motion but found, pursuant to CPLR 3212 (g), that the claims at issue were mailed by plaintiff and received by defendant. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

For the reasons stated in Allay Med. Servs., P.C., as Assignee of Bright, Sayquan U v Nationwide Ins. (___ Misc 3d ___, 2021 NY Slip Op ______ [appeal No. 2019-118 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on July 30, 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 (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 24, 2018. 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.

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 had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 24, 2018, the Civil Court denied the motion and cross motion but found, pursuant to CPLR 3212 (g), that the claims at issue were mailed by plaintiff and received by defendant. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied (see Bento Ortho, Inc. v Ameriprise Auto & Home, 64 Misc 3d 136[A], 2019 NY Slip Op 51160[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We reach no other issue.

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

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

Law Office of Goldstein, Flecker & Hopkins (Alison M. Chulis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 24, 2020. 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 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’s action is barred by a declaratory judgment entered in the Supreme Court, Nassau County, or, in the alternative, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order dated January 24, 2020, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff had failed to appear for duly scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

Defendant’s motion for summary judgment dismissing the complaint should have been granted under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) since, under the circumstances, any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st [*2]Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Even absent the declaratory judgment, defendant’s motion should have been granted on the alternate ground. Defendant established that the initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and plaintiff has not rebutted those elements of defendant’s prima facie case. Moreover, the Civil Court held, in effect pursuant to CPLR 3212 (g), that defendant had established the timely mailing of its denial of claim form, which finding has not been challenged by plaintiff.

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

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered December 17, 2018. The judgment, entered pursuant to an order of that court entered March 20, 2013 granting defendant’s motion for summary judgment dismissing the complaint, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the first through fourth causes of action on the ground that verification of the claims comprising those causes of action remained outstanding, and dismissing the fifth and sixth causes of action on the grounds that defendant had timely denied the claims based on a lack of medical necessity, and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff opposed the motion. In an order entered March 20, 2013, the Civil Court granted defendant’s motion. Plaintiff appeals from a judgment entered December 17, 2018 dismissing the complaint.

Plaintiff’s argument regarding the adequacy of its verification responses lacks merit. Defendant demonstrated that it had not received all of the requested verification as to the claims underlying the first four causes of action, and, thus, that those causes of action are premature (see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and plaintiff failed to raise a triable issue of fact with respect thereto.

Contrary to plaintiff’s further contention, plaintiff did not demonstrate the existence of a [*2]triable issue of fact in opposition to defendant’s showing that the services at issue in the claims underlying the fifth and sixth causes of action lacked medical necessity and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule.

Accordingly, the judgment is affirmed.

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