The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 8, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

Plaintiff commenced this action to recover first-party no-fault benefits for services it had provided to its assignor, who had purportedly been injured in a motor vehicle accident on March 6, 2012. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel, based upon prior orders of the Civil Court, Queens County, entered in two separate actions and on the further ground that defendant did not have a policy of insurance which covered plaintiff’s assignor on the date of the accident. Plaintiff opposed the motion. By order entered July 8, 2016, the Civil Court granted the motion, finding that plaintiff is collaterally estopped from proceeding in this action, and the court dismissed the complaint with prejudice.

In support of its motion, defendant annexed the prior orders of the Civil Court, Queens County, which stated, insofar as is relevant, that defendant had established that there was no coverage “at the time of the accident in question, as the policy was cancelled for nonpayment effective 2/28/12.” Although defendant’s attorney asserted in an affirmation in support of the [*2]motion at bar that the “orders were rendered on motions that contained almost identical facts and evidence as presented herein,” neither order stated the date of the accident at issue before that court, and defendant did not annex the respective complaints or underlying motion papers. We also note that the present plaintiff, Island Life Chiropractic Pain Care, PLLC, was not a party to either of the Civil Court, Queens County, actions, as those actions had been commenced by Island Life Chiropractic, P.C. and Tam Medical Supply Corp., respectively.

A party seeking to invoke collateral estoppel must demonstrate “that the particular issue was actually litigated, squarely addressed, and specifically decided in a prior proceeding” (M. Kaminsky & M. Friedberger v Wilson, 150 AD3d 1094, 1095 [2017]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). In the case at bar, defendant’s submission in support of its motion for summary judgment of copies of the two orders of the Civil Court, without more, was, under the circumstances presented, insufficient to show that plaintiff was attempting to relitigate the same issue which had been raised in the prior actions (see 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]). Consequently, defendant failed to demonstrate its entitlement to summary judgment based upon the doctrine of collateral estoppel.

Defendant also argued that, even if the court did not find that defendant had established its lack of coverage defense through collateral estoppel, the evidence it submitted in support of its present motion was, in any event, sufficient to establish the defense. To establish a lack of coverage, defendant was required to demonstrate that the applicable policy had been validly cancelled (see Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 48 Misc 3d 138[A], 2015 NY Slip Op 51216[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see generally Great Health Care Chiropractic, P.C. v Infinity Group, 50 Misc 3d 144[A], 2016 NY Slip Op 50257[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). However, defendant failed to prove the mailing of a cancellation letter in accordance with New York law (see Vehicle and Traffic Law § 313 [1] [a]) or, contrary to what defendant asserted for the first time in a reply affirmation in the Civil Court, in accordance with Connecticut law (see Conn. Gen. Stat. § 38a-343 [a]). Consequently, defendant failed to demonstrate that the insurance policy had been validly cancelled.

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

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered October 17, 2014. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that the denial of claim form, which had denied the claim on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted an affirmed peer review report which set forth a factual basis and medical rationale for the neurologist’s determination that there was a lack of medical necessity for the services at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant’s prima facie showing was not rebutted by plaintiff.

Upon the record presented, we find no merit to plaintiff’s argument that defendant’s cross motion should have been denied, or a continuance ordered to provide an opportunity for disclosure, as plaintiff had ample opportunity to take steps to compel discovery or otherwise investigate the case before it moved for summary judgment. Plaintiff failed to do so, and its inaction may not now be used as a means to defeat defendant’s cross motion (see Edwards v Terryville Meat Co., 178 AD2d 580 [1991]; Silinsky v State-Wide Ins. Co., 30 AD2d 1 [1968]).

Accordingly, the order is affirmed.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang 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 (Robin Kelly Sheares, J.), entered August 11, 2016. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the Civil Court lacked personal jurisdiction over defendant. In several affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant. Plaintiff opposed the motion with an affirmation by its counsel, who made unsupported assertions that defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant appeals from an order of the Civil Court entered August 11, 2016 denying defendant’s motion to dismiss the complaint.

Defendant made a prima facie showing that personal jurisdiction had not been obtained over it. “In opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, ‘a plaintiff need only make a prima facie showing that such jurisdiction exists’ ” (Hopstein v Cohen, 143 AD3d 859, 860 [2016], quoting Lang v Wycoff Hgts. Med. Ctr., [*2]55 AD3d 793, 798 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

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

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

Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Jessica Voto of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 3, 2015, deemed from a judgment of that court entered May 6, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 3, 2015 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $934.15.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

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, arguing, among other things, that defendant had timely denied the claim on the ground that plaintiff’s assignor’s intoxication at the time of the accident at issue was the proximate cause of the accident. By order entered June 3, 2015, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Defendant’s appeal from the June 3, 2015 order is deemed from a judgment that was entered on May 6, 2016 pursuant to the order (see CPLR 5501 [c]).

In opposition to plaintiff’s motion, defendant raised a triable issue of fact as to whether it had timely and properly denied the claim based on the alleged intoxication of plaintiff’s assignor, who was operating the vehicle at the time of the accident at issue (see Westchester Med. Ctr. v Mapfre Ins. Co. of NY, 119 AD3d 777 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

Law Offices of Daniel J. Tucker (Daniel J. Tucker and Netanel BenChaim of counsel), for appellant. Law Offices of Damin J. Toell, 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 (Harriet L. Thompson, J.), entered October 23, 2015. The order (1) denied defendant’s motion for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and, in the event that plaintiff fails to file proof of such an application to the Workers’ Compensation Board with the court within 90 days of the date of the court’s order, granting defendant summary judgment dismissing the complaint, and (2) granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s motion is granted to the extent that the matter shall be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law, and, in the event that plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant summary judgment dismissing the complaint and deny plaintiff’s cross motion for summary judgment unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and, in the event plaintiff fails to file proof of such an application to the Workers’ Compensation Board with the court within 90 days of the date of the court’s order, granting defendant summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been injured during the course of his employment. Plaintiff cross-moved for summary judgment. By order entered October 23, 2015, 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 [*2]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 jurisdiction with respect to determination 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]). This issue must be resolved in the first instance 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]).

Plaintiff’s argument that it believes that Workers’ Compensation Law § 28 renders any claim for workers’ compensation benefits untimely in this case—because plaintiff’s assignor did not make an application for benefits within two years of the date of the accident—is unavailing, particularly where, as here, defendant demonstrated, and plaintiff did not deny, that defendant had timely denied plaintiff’s claim on the ground that plaintiff’s assignor was injured during the course of his employment.

Accordingly, the order is reversed, defendant’s motion is granted to the extent that the matter shall be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law, and, in the event that plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant summary judgment dismissing the complaint and deny plaintiff’s cross motion for summary judgment unless plaintiff shows good cause why the complaint should not be dismissed.

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

[*1]

Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Gail S. Lauzon (Russo & Tambasco, Melville, NY [Susan J. Mitola], of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated January 22, 2016. The order denied the petition pursuant to CPLR article 75 to vacate the arbitration award.

Ordered that the order is affirmed, with costs.

On August 6, 2012, a vehicle owned and operated by the petitioner was struck in the rear by a vehicle owned and operated by Omau Kwende Channer. Both vehicles were insured by the respondent, GEICO Insurance Company (hereinafter GEICO). Following the accident, the petitioner commenced an action against Channer to recover damages for personal injuries she allegedly sustained as a result of the accident. She obtained summary judgment in her favor on the issue of liability, after which GEICO settled that action for the sum of $25,000, which was the full limit on the insurance policy held by Channer. Thereafter, the petitioner made a claim, under her own policy with GEICO, for supplemental underinsured motorist (hereinafter SUM) benefits in the amount of $275,000. GEICO denied the SUM claim, arguing that the injury for which the petitioner sought SUM compensation (hereinafter the subject injury) was not the result of the motor vehicle accident. In response, the petitioner made a demand for arbitration.

A SUM arbitration hearing was held on January 23, 2015, and the parties submitted, inter alia, the petitioner’s medical records and independent medical examination and peer review reports commissioned by GEICO. In an award dated March 2, 2015, the arbitrator concluded that the subject injury was not the result of the motor vehicle accident, and therefore denied the petitioner’s SUM claim. Thereafter, the petitioner commenced this CPLR article 75 proceeding to vacate the SUM arbitration award. She argued that the award was arbitrary and capricious, irrational, and that the arbitrator exceeded his authority by failing to preclude GEICO from disputing causation since GEICO had taken a prior inconsistent position on that issue by paying no-fault benefits related to the subject injury. By order dated January 22, 2016, the Supreme Court denied the petition. The petitioner appeals.

Judicial review of arbitration awards is extremely limited (see Matter of County of Nassau v Civil Serv. Empls. Assn., 150 AD3d 1230, 1230 [2017]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45 [2015]). Pursuant to CPLR 7511 (b) (1) (iii), a court may [*2]vacate an arbitration award if the arbitrator “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.” However, vacatur of an award pursuant to this provision is warranted “ ’only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” (Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, 123 AD3d 731, 732 [2014], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]; see Matter of Peterson v Katonah-Lewisboro UFSD, 134 AD3d 1125, 1125 [2015]). “ ’An award is irrational when there is no proof whatever to justify the award’ ” (Matter of Peterson v Katonah-Lewisboro UFSD, 134 AD3d at 1125, quoting Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, 123 AD3d at 732; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

Where, as here, an arbitration award is the product of compulsory arbitration, the award “ ’must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious’ ” (Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of N.Y., 144 AD3d 1160, 1161 [2016] [internal quotation marks omitted], quoting City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46).

Here, the arbitrator’s determination was rational, supported by evidence, and not arbitrary and capricious. Moreover, while the petitioner contends that the arbitrator exceeded the scope of his authority by disregarding GEICO’s prior inconsistent position, taken in the no-fault context, the alleged error was, at most, an error of law which would not warrant vacatur of the arbitration award (see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

The petitioner’s remaining contentions are without merit. Mastro, J.P., Rivera, Hinds-Radix and Iannacci, JJ., concur.

Decided on June 8, 2018

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

Decided on June 8, 2018

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

Decided on June 8, 2018

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

Decided on June 8, 2018

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