Decided on July 12, 2019

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

Law Office of Aloy O. Ibuzor (Jerome F. X. Hoffman of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from the order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered May 23, 2016. 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, with $30 costs, and the matter is remitted to the Civil Court to be held in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that plaintiff’s assignor had been injured during the course of his employment. Plaintiff cross-moved for summary judgment. By order entered May 23, 2016, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). ” ‘Since primary [*2]jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Consequently, the issue of whether plaintiff’s assignor was acting as an employee at the time of the accident must be resolved by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]) and, indeed, the record indicates that an application to the Workers’ Compensation Board has been made.

Accordingly, the order is reversed and the matter is remitted to the Civil Court to be held in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

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

Decided on July 12, 2019

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

Decided on July 11, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on June 28, 2019

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

Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered July 28, 2017. 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 appeals, as limited by its brief, from so much of an order of the Civil Court entered July 28, 2017 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for scheduled examinations under oath (EUOs).

The record indicates that, in response to defendant’s EUO requests, plaintiff sent letters essentially stating that it would not appear for the requested EUOs unless defendant set forth its reasons for requesting the EUOs. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion, as it found that there was a triable issue of fact as to “whether Defendant’s request for EUO was made in good faith, under objective standards.”

“No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ ” (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “[t]here is no requirement in the regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept [*2]No. 02-10-14 [October 2002]). The Department of Financial Services’^[FN1] interpretation of the No-Fault Regulations is entitled to deference unless “irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]; see also Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996]), which is not the case here. Thus, defendant “was not required to provide the reason for its demand” either in its scheduling letters or, by extension, “in response to an objection from plaintiff” (Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

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

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: June 28, 2019

Footnotes

Footnote 1: In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services.”

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Goldberg, Miller & Rubin (Harlan R. Schreiber of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew S. Borrok, J.), entered March 16, 2017. The judgment, insofar as appealed from, after a nonjury trial, dismissed the second, third, fourth, sixth and eighth causes of action.

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

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to whether the services at issue were medically necessary. The trial court entered into evidence the claim forms and denial of claim forms, and the parties stipulated to the expertise of defendant’s peer review doctor as a board certified internist. The doctor testified that the services provided by plaintiff lacked medical necessity. Plaintiff rested its case without calling any witnesses. Plaintiff appeals from so much of a judgment entered March 16, 2017 as dismissed the second, third, fourth, sixth and eighth causes of action.

Since defendant sufficiently rebutted the presumption of medical necessity (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), we find no basis to disturb the Civil Court’s finding with respect thereto (see Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50937[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

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

Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. McDonald, Safranek & Turchetti (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered April 21, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In October 2015, plaintiff commenced this action to recover assigned first-party no-fault benefits arising from a motor vehicle accident which had occurred on January 11, 2011. The injured party had assigned the no-fault benefits to plaintiff on September 21, 2011. Defendant moved for summary judgment dismissing the complaint or for an order staying the action, as defendant had commenced a declaratory judgment action in the Supreme Court, Onondaga County, against the assignor and numerous medical providers other than plaintiff herein, seeking a declaration that the accident in question was not a covered incident under the insurance policy. Plaintiff opposed the motion. In further support of the motion, defendant proffered an order of the Supreme Court, dated August 2, 2016, declaring that the insurer (defendant herein) is not required or obligated to provide no-fault benefits to the assignor (and numerous named providers, other than plaintiff) arising out of the January 11, 2011 accident, and defendant argued that, consequently, plaintiff’s action in the Civil Court is barred. Plaintiff appeals from an order of the Civil Court entered April 21, 2017 which granted defendant’s motion based upon the order in the declaratory judgment action and dismissed plaintiff’s complaint with prejudice.

“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., [*2]140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as the injured party’s assignment to plaintiff was made on September 21, 2011, after the commencement in August 2011 of the declaratory judgment action, plaintiff is deemed to be in privity with the assignor and “charged with notice that [its] rights to the assignment are subject to the competing claim” (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 487 [1979]). Consequently, in light of the Supreme Court’s order, the Civil Court properly granted defendant’s motion for summary judgment (see 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 this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 304; 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., 38 Misc 3d 1).

Accordingly, the order is affirmed.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

Decided on June 14, 2019

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

[*1]

Rubin & Nazarian (Goldberg, Miller & Rubin, P.C., New York, NY [Harlan R. Schreiber], of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP (Nicholas P. Hurzeler and Kristen Carroll of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate an arbitration award dated April 28, 2017, in which Hereford Insurance Company cross-petitioned to confirm the award, Hereford Insurance Company appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated March 30, 2018. The order granted the petition and denied the cross petition.

Ordered that the order is affirmed, with costs.

On January 28, 2014, a tractor owned by Cowan Systems, LLC (hereinafter Cowan), operated by Juan C. Aguilar, and insured by the petitioner, Zurich American Insurance (hereinafter Zurich), collided with the driver’s side of a parked vehicle occupied by Carlos Tapia and insured by the appellant, Hereford Insurance Company (hereinafter Hereford). Tapia, who allegedly sustained various injuries as a result of the accident, received $20,018.17 in no-fault benefits from Hereford.

In October 2014, Tapia commenced an action (hereinafter the action) against Cowan, Aguilar, and another defendant in the Supreme Court, Queens County, to recover damages for injuries allegedly sustained as a result of the accident. In or around December 2014, the action was removed to the United States District Court for the Eastern District of New York. The action proceeded to trial, and on December 15, 2016, a unanimous jury found that Tapia did not demonstrate by a preponderance of the evidence that the accident caused him to sustain injury.

Meanwhile, on or about November 24, 2015, via compulsory arbitration pursuant to Insurance Law § 5105, Hereford sought reimbursement from Zurich for the no-fault benefits paid to Tapia. At the arbitration hearing, Zurich submitted into evidence, inter alia, a copy of the jury verdict sheet from the action. Nonetheless, the arbitrator, upon determining that Zurich’s insured was 100 percent at fault for the accident for failure to yield and that Hereford had proven all of its damages, awarded Hereford $20,018.17.

Subsequently, Zurich commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending that the award was arbitrary and capricious insofar as the arbitrator failed to give preclusive effect to the jury verdict from the action. Hereford cross-petitioned to confirm the award, contending that there was evidentiary support and a rational basis for the award and that it was not improper for the arbitrator not to give preclusive effect to the jury verdict insofar as Hereford was not a party to the action. The Supreme Court granted Zurich’s petition and denied Hereford’s cross petition. Hereford appeals. We affirm.

“Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrators’ determination is subject to ‘closer judicial scrutiny’ under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties” (Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634 [internal quotation marks omitted]). “In addition, article 75 review questions whether the decision was rational or had a plausible basis” (id. [internal quotation marks omitted]).

The arbitration award herein was irrational and arbitrary and capricious insofar as the arbitrator failed to give preclusive effect to the jury’s determination that Tapia had failed to demonstrate by a preponderance of the evidence that the accident caused him to sustain injury (see Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644, 645 [2011]; Matter of State of N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269, 1271 [2007]). Significantly, the jury’s determination that Tapia did not demonstrate by a preponderance of the evidence that the accident caused him any injury precluded Hereford from recovering from Zurich via mandatory arbitration the amount of no-fault benefits paid by Hereford to Tapia with respect to the accident (see Insurance Law § 5105 [a]; see generally Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). Here, “the arbitrator failed to consider this provision of law in light of the jury’s verdict” (Matter of G.E.I.C.O. Gen. Ins. Co. v Canal Ins. Co., 189 Misc 2d 467, 469 [Civ Ct, Queens County 2001]; see New York City Tr. Auth. v GEICO Gen. Ins. Co., 46 Misc 3d 706, 709 [Civ Ct, NY County 2014]).

Contrary to Hereford’s contention, even though it was not a party to the action, Hereford, as subrogee, stands in place of Tapia, its subrogor, “such that it can be reasonably said that the two are in ‘privity,’ sufficient to bind [Hereford] by the prior judgment to which it was not a party of record” (Matter of G.E.I.C.O. Gen. Ins. Co. v Canal Ins. Co., 189 Misc 2d at 469, citing Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]).

Hereford’s remaining contention regarding Zurich’s failure to submit to the arbitrator and the Supreme Court a copy of the judgment in the action is improperly raised for the first time on appeal. Rivera, J.P., Austin, Roman and Duffy, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. With respect to the third, fifth and seventh causes of action, defendant claimed that the limits of the Florida insurance policy involved herein had been exhausted prior to defendant’s receipt of the claims underlying those three causes of action. With respect to the first, second, fourth and sixth causes of action, which constituted the remaining causes of action, defendant claimed that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule.

Defendant failed to establish with admissible evidence that Florida law applies and, thus, [*2]that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies, defendant relied upon a payment log to demonstrate that the policy limits had been exhausted; however, the affidavits submitted by defendant failed to establish that the annexed payment log constituted admissible evidence of exhaustion (see CPLR 4518; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the third, fifth and seventh causes of action.

The evidence proffered by defendant in support of the branches of its cross motion seeking summary judgment dismissing the first, second, fourth and sixth causes of action was sufficient to demonstrate that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s arguments which are made for the first time on appeal are not properly before us (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider them.

The branches of plaintiff’s motion seeking summary judgment on the third, fifth and seventh causes of action were properly denied, as the proof submitted by plaintiff failed to establish that those claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied.

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