Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 12, 2021. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $652.20 pursuant to a stipulation of settlement entered into in July 2010, awarded plaintiff statutory no-fault interest from February 14, 2017.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits was commenced in 2001 and settled in July 2010. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 31, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. In February 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 31, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered February 22, 2018, the Civil Court granted the motion, directed the clerk to recalculate the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual of [*2]statutory no-fault interest from July 26, 2010 through February 14, 2017. A judgment was entered on October 12, 2021, accordingly.

Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to the date of plaintiff’s motion. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

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

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Jaffe & Velazquez, LLP (Thomas Torto of counsel), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 13, 2021. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $992.20 pursuant to a stipulation of settlement entered into in April 2008, awarded plaintiff statutory no-fault interest from February 22, 2017.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits was commenced in 2005 and settled in April 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. In February 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered February 20, 2018, the Civil Court granted the motion, directed the clerk to recalculate the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual of [*2]statutory no-fault interest through February 22, 2017, the date plaintiff made the instant motion. A judgment was entered on October 13, 2021, accordingly.

Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to the date of plaintiff’s motion. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

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

Decided on December 2, 2022

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

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about September 24, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment and declared that it owes no further duty to defendants to pay any no-fault claims with respect to a specified motor vehicle accident involving defendant Maria Aguilar, unanimously affirmed, without costs.

Country-Wide satisfied its prima facie burden of showing that it exhausted the policy by submitting the policy declaration page, an affidavit by its no-fault claim supervisor responsible for Aguilar’s claim, and the payment ledger showing that it had paid out $50,000 to Elmhurst Hospital Center by May 21, 2018. Country-Wide was under no further obligation to pay defendants once the policy limits were exhausted (see Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). Contrary to defendants’ contention, the affidavit by the no-fault claim supervisor, who had personal knowledge of the claim file and the procedures for processing no-fault claims, was sufficient to lay a foundation for admission of the documents as business records under CPLR 4518 (a) (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146, 146 [1st Dept 2003]).

In response to Country-Wide’s prima facie showing, defendants submitted no evidence at all, much less evidence sufficient to establish the existence of material issues of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, we reject defendants’ suggestion that Country-Wide was required to show that it complied with 11 NYCRR 65-3.15’s priority of payment rule to make its prima facie case, as defendants did not raise the issue as an affirmative defense in their answer although the answer contained more than 20 other affirmative defenses (see generally GMAC Mtge., LLC v Coombs, 191 AD3d 37, 50 [2d Dept 2020]; Aimatop Rest. v Liberty Mut. Fire Ins. Co., 74 AD2d 516, 517 [1st Dept 1980]).

We have considered defendants’ remaining contentions and find them unavailing. Concur—Manzanet-Daniels, J.P., Moulton, González, Rodriguez, Higgitt, JJ.

Index No. CV-709111-18/KI

Attorney for Plaintiff:
Sara Diamond, Esq. (Of Counsel)
Law Offices of Melissa Betancourt, PC
2761 Bath Avenue, Suite B1 & B2
Brooklyn, New York 11214

Attorney for Defendants:
Helen Mann Ruzhy, Esq.
Law Offices of Tina Newsome-Lee
485 Lexington Avenue, 7th Fl.,
New York, New York 10007

After a bench trial, this Court dismisses the complaint on the following grounds:

This action was brought by a provider seeking to recover assigned first-party no-fault benefits.

Here, the triable issue is the medical necessity of the treatment received by Joshua Lessy. The parties stipulated to: Plaintiff’s timely submission of the claim, and Defendant’s timely denial thus establishing their prima facie case; the expert qualifications of licensed Chiropractor Dr. Todd Aordkian, his peer review report, and the documents he reviewed.

At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity of the treatment or testing for which payment is sought (A.M. Med. Services, P.C. v Deerbrook Ins. Co., 18 Misc 3d 1139(A) (Civ Ct 2008)). At a minimum, Defendant must establish a factual basis and medical rationale for the lack of medical necessity of Plaintiff’s services (see CityWide Social Work & Psy. Serv., P.L.L.C. v Travelers Indem. Co., 3 Misc 3d 608 (Civ Ct 2004); Inwood Hill Med. P.C. v. Allstate Ins. Co., 3 Misc 3d 1110(A) (Civ Ct 2004). “The insurer may rebut the inference of medical necessity through a peer review and, if the peer review is not rebutted, the insurer is entitled to denial of the claim (e.g., A Khodadadi Radiology, P.C. v. NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131(A) (App Term 2007)).

According to the detailed credible testimony of Dr. Aordkian, the cervical collar, back support, cervical traction unit, and the TENS unit provided by plaintiff were not medically necessary. None of these devices met the criteria for the treatment of Mr. Lessy. Relying upon the medical treatise written by Panjabi and White, Dr. Aordkian opined the criteria for back support is where there are situations of clinical instability, a fracture or dislocation of a lumbar spine, scoliosis measuring more than 25 degrees, inactive spondylolisthesis with a pars fracture, and postoperative treatment in certain lumbar spine surgeries. Based on his review of the medical records, the Assignor sustained a musculoskeletal injury. Therefore, the treatment provided would be counteractive because it would decrease the range of motion. The cervical collar is used in conversative management of cervical spine fractures where surgery is not necessary. The collar around the fractured vertebra allows the bone to heal and tightens the damaged muscle and joint structures. Here, the Assignor sustained a soft tissue brain-type injury, therefore, it was counterintuitive to place a collar around these structures because movement is restricted. Traction is traditionally used for situations where there is a damaged disk, and the disk herniation is pressing on a nerve arm pain. Here, the medical records failed to document any radicular signs or symptoms along the upper extremities involving a specific nerve root compression demonstrated on the cervical spine MRI Study. Further, Dr. Aordkian credibly testified that there was no successful cervical traction demonstrated in the treatment. The criteria for use of a TENS unit occurs where therapy has been found to be beneficial, and then the Assignor can be prescribed a TENS unit on discharge once the active treatment ends. Dr. Aordkian testified the TENs unit was ordered for home use while the Assignor was under active treatment, therefore, the TENS unit was prescribed prematurely. The chiropractor who prescribed this TENS unit did not demonstrate a successful trial of the TENS unit therapy in the office.

Defendant’s medical expert was very specific and detailed in explaining the basis for his medical opinion. The Court finds Dr. Aordkian’s testimony to be medically sound and credible. Dr. Aordkian sufficiently demonstrated he relied on his review of the Assignor’s medical records to reach his opinion that the services were not medically necessary for the Assignor’s condition. Dr. Aordkian’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the services (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins., 52 Misc 3d 139(A) (App Term 2016)). Considering Dr. Aordkian testimony and the relevant medical records submitted to the Court, this Court finds that Defendant met its burden and provided sufficient proof that the procedures were not medically necessary.

Where the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity (see Prince, Richardson on Evidence §§ 3-104, 3-202 (Farrell 11th ed)); W. Tremont Med. Diagnostic, P.C. v. Geico Ins. Co., 13 Misc 3d 131(A) (App Term 2006)). Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity (see New Horizon Surgical Ctr., L.L.C, 52 Misc 3d 139(A) Moreover, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary (MK Healthcare Med. PC v. Travelers Ins. Co., 76 Misc 3d 1205(A) (Civ Ct 2022)). Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing.

Defendant met its burden of establishing that the services rendered to Joshua [*2]Plessy by Plaintiff were not medically necessary. No rebuttal was offered by the plaintiff. This case is dismissed.

This constitutes the decision and order of the Court.

Decided on November 18, 2022

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Lindsay A. Padover of counsel), for respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated October 13, 2021. The order granted a motion by defendant Unitrin Direct Insurance Company for summary judgment dismissing the complaint in its entirety and denied plaintiff’s cross motion for summary judgment.

ORDERED that, on the court’s own motion, the caption is amended to reflect the addition of Unitrin Direct Insurance Company as a party defendant, and the caption has been amended accordingly, and it is further,

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

Jules Francois Parisien, M.D., commenced this action against Kemper Insurance Company (Kemper) to recover assigned first-party no-fault benefits for services provided to Parisien’s assignor, Joshua David, who had allegedly been injured in an accident on October 25, 2016. Unitrin Direct Insurance Company (Unitrin) appeared in the action by serving and filing an answer in which it characterized itself as having been incorrectly sued as Kemper, thereby agreeing that the allegations in the complaint were properly asserted against it.

After the commencement of this action, Unitrin brought a declaratory judgment action in Supreme Court, New York County, against Parisien and David, among other parties, pertaining to the October 25, 2016 accident, and moved therein for summary judgment against Parisien, among other providers. In an order entered May 11, 2020, upon granting Unitrin’s motion for summary judgment against Parisien and other providers with respect to David, the Supreme Court declared that, because of David’s failure to comply with a condition precedent, Unitrin was not obligated to pay claims for reimbursement submitted by Parisien for services provided to David in connection with the October 25, 2016 accident. Unitrin thereafter moved in the Civil Court to dismiss the complaint “[p]ursuant to CPLR 3211 (a) (5) and 3212 . . . on the ground that plaintiff’s claim is barred by [the] doctrine of res judicata” based upon the Supreme Court order. Unitrin’s attorney also alleged in an affirmation in support of the motion that “plaintiff sued a non-existent entity, ‘Kemper Casualty Insurance Company,’ when the proper insurer is [Unitrin],” relying on an attached police report, and that “[o]n that basis alone” the complaint should be dismissed. Plaintiff cross-moved for summary judgment and opposed Unitrin’s motion. By order dated October 13, 2021, the Civil Court granted Unitrin’s motion to dismiss the complaint, finding that Unitrin was “the proper defendant in this action,” thereby, in effect, dismissing the complaint insofar as asserted against Kemper, and finding that the action, insofar as asserted against Unitrin based upon its answering the complaint, was barred by res judicata. The court further denied plaintiff’s cross motion.

Since Unitrin voluntarily appeared in the action and the Civil Court accepted Unitrin Direct Insurance Company as “the proper defendant in this action,” but the caption was not amended accordingly, on the court’s own motion, we amend the caption to reflect the addition of Unitrin Direct Insurance Company as a party defendant.

On appeal, the only issue raised by plaintiff with respect to so much of the Civil Court’s order as granted Unitrin’s motion is whether the May 11, 2020 Supreme Court order should have res judicata effect on this action, thereby warranting the dismissal of the complaint. Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in determining that Unitrin was the proper defendant, as Unitrin proffered sufficient evidence to support its contention that it is “the proper insurer” (cf. Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

“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 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Because Unitrin is the proper defendant in this action, the Civil Court correctly granted its motion, as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the [*2]declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; 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. v Republic W. Ins., 38 Misc 3d 1, 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

We reach no other issue.

Accordingly, the order is affirmed.

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

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. The Rybak Firm, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered February 9, 2021. 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 failed to appear for duly scheduled examinations under oath (EUOs) and plaintiff cross-moved for summary judgment. In an order entered February 9, 2021, the Civil Court denied the motion and cross motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the scheduled EUOs. The Civil Court found that there was an issue of fact because the EUOs were scheduled to be held before plaintiff submitted the claims at issue and defendant did not schedule EUOs after these claims were submitted.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to appear, and that the insurer issued a timely denial of the claim(s) on that ground (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that, pursuant to CPLR 3212 (g), the Civil Court implicitly found to have been established.

Plaintiff’s contentions on appeal—that defendant could not deny plaintiff’s claims based upon plaintiff’s failure to appear for EUOs because such EUOs and nonappearances occurred prior to submission of the claims at issue, and that defendant needed to schedule additional EUOs after plaintiff submitted the claims at issue—lack merit (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2007]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

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

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

Decided on November 18, 2022

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

Decided on November 18, 2022

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