Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered July 15, 2015. The order denied 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion finding, among other things, the existence of an issue of fact as to whether plaintiff had contacted defendant to reschedule the EUOs and, if so, whether defendant had responded to plaintiff.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmations submitted by defendant’s attorneys, who were present in their offices to conduct the EUO of plaintiff on the scheduled dates, were sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In opposition to defendant’s motion for summary judgment, plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that [*2]plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Decided on February 22, 2019

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

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro 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 (Robin Kelly Sheares, J.), entered December 17, 2014. The order denied defendant’s motion for leave to amend its answer, pursuant to CPLR 3025 (b), to add, among other things, the affirmative defense of res judicata, to deem the amended answer served nunc pro tunc and, in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred based on that doctrine.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for leave to amend its answer, pursuant to CPLR 3025 (b), to add, among other things, the affirmative defense of res judicata, to deem the amended answer served nunc pro tunc and in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred based on that doctrine is granted.

Plaintiff commenced this action in the Civil Court in August 2011 to recover assigned first-party no-fault benefits. On November 21, 2011, the insurer commenced a declaratory judgment action in the Supreme Court, Nassau County, and, approximately two weeks later, on December 8, 2011, served an answer in the Civil Court action. In a declaratory judgment entered May 7, 2013 upon the failure of plaintiff and its assignor to appear and answer the complaint, the Supreme Court declared, among other things, that the insurer is not required to pay no-fault benefits to the provider and its assignor on the ground that the alleged accident was a staged incident and, therefore, was not covered under the policy in question. Thereafter, the insurer moved in the Civil Court for leave to amend its answer to include, insofar as is relevant, the affirmative defense of res judicata, to deem the amended answer timely served nunc pro tunc, and, in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action in the Civil Court is barred under the doctrine of res judicata. Plaintiff opposed the [*2]motion. By order dated December 17, 2014, the Civil Court denied defendant’s motion, finding that defendant had waived its res judicata defense by submitting its answer in the Civil Court after it had commenced the declaratory judgment action.

Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). In opposition to defendant’s motion, plaintiff failed to demonstrate any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]) or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832 [1980], affd 54 NY2d 883 [1981]; 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]) as a result of the proposed amendment to the answer, while defendant established that the proposed affirmative defense had merit. Contrary to the determination of the Civil Court that defendant had waived its defense of res judicata, defendant had no basis to assert that defense before May 7, 2013, when the declaratory judgment was entered in the Supreme Court (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, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]). Consequently, the Civil Court should have granted the branches of defendant’s motion seeking leave to amend the answer to include the res judicata defense and to deem the answer timely served nunc pro tunc.

“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., 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]). It is well settled that default judgments which have not been vacated can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court declaratory judgment, we reverse the order and grant the branch of defendant’s motion seeking, in effect, summary judgment dismissing the complaint as barred (see 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]; 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]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [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., 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 reversed and defendant’s motion for leave to amend its answer pursuant to CPLR 3025 (b) to add, among other things, the affirmative defense of res judicata, to deem the proposed amended answer timely served nunc pro tunc and, in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred is granted.

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered March 9, 2016. 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). In an order entered March 9, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were the location of the generation of defendant’s EUO letters and matters relating to the reasonableness of its EUO requests. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).

Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable, in that defendant did not [*2]respond to plaintiff’s letter demanding that defendant provide its good faith reasons for requesting plaintiff’s EUO. However, as plaintiff failed to submit proof that it had mailed such a letter, its argument lacks any basis (see e.g. Professional Health Imaging, P.C. v State Farm Mut. Aut. Ins. Co., 52 Misc 3d 132[A], 2016 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant would not have been required to provide the reason for its demand in response to an objection from plaintiff (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).

Plaintiff’s remaining contentions are without merit.

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

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

Decided on January 18, 2019

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

Decided on January 18, 2019

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

Decided on January 18, 2019

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

Decided on January 18, 2019

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

Decided on January 18, 2019

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

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 26, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,940.

ORDERED that the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

This action by a provider to recover assigned first-party no-fault benefits as to seven claims was consolidated for a nonjury trial with five other actions. After the trial, the Civil Court found that plaintiff had established its prima facie case in this action and that defendant had failed to establish its defenses, and awarded judgment to plaintiff on all seven claims.

Contrary to defendant’s argument, plaintiff established its prima facie case as to the seven claims at issue in this action, totaling $6,940, as plaintiff demonstrated that the bills had been received by defendant and had not been paid (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

However, defendant correctly argues that it established that it had properly and timely [*2]denied three of the claims, for $605, $285 and $355, respectively, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant’s proof at trial was sufficient to demonstrate that defendant had timely mailed the IME scheduling letters and denials at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear at those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As defendant proved that the assignor had violated a condition precedent to coverage (see id.), plaintiff was not entitled to recover on those bills.

Defendant’s remaining arguments lack merit.

Accordingly, the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

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

Decision Date: January 18, 2019