[*1]

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

Correia, Conway & Stiefeld, White Plains (Nicole M. Bynum of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about October 7, 2021, which granted plaintiff insurers’ motion for summary judgment to the extent of declaring that defendant medical providers are not entitled to any no-fault benefits under claimant-defendant Sandra Valera’s automobile insurance policy, unanimously reversed, on the law, without costs, the motion denied, the declaration vacated, and the matter remanded for further proceedings consistent with this decision.

In June 2019, the claimant was injured in a collision involving a vehicle that she insured under an automobile insurance policy issued by plaintiff insurers. The policy included an endorsement entitling the claimant to receive payment for accident-related medical expenses, and entitling her treating medical providers to collect her assigned no-fault benefits. In January 2020, the insurers filed this action for a declaration of no-coverage and an injunction barring defendant medical providers from seeking any no-fault reimbursement under the claimant’s automobile insurance policy. The insurers alleged that the claimant had intentionally and materially misrepresented her home address in procuring the policy, as the proper policy address was not the Wappingers Falls address she had stated, but rather, an address in the Bronx.

The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the examination under oath (EUO). However, the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers’ underwriter is conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins (see 463 Saddle Up Tremont LLC v Union Mut. Fire Ins. Co., 205 AD3d 511, 511-512 [1st Dept 2022]; BX Third Ave. Partners, LLC v Fidelity Natl. Tit. Ins. Co., 112 AD3d 430, 430 [1st Dept 2013]; Feldman v Friedman, 241 AD2d 433, 434 [1st Dept 1997]). We therefore deny the insurers’ motion for summary judgment without prejudice and remand the matter for further discovery concerning the insurers’ claim and underwriting practices and guidelines. Concur—Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.

Decided on September 23, 2022

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

Decided on September 23, 2022

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

Robyn M. Brilliant, P.C. (Tori Y. Buttrum 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 (Ira R. Greenberg, J.), entered December 3, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled independent medical examinations.

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 assignor failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled IMEs.

Contrary to the determination of the Civil Court, defendant demonstrated that, before it [*2]had received the claim at issue, it properly scheduled IMEs of plaintiff’s assignor, and that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant also demonstrated that it timely denied the claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), based upon the assignor’s failure to appear for the IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendants’ motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order of the Civil Court as denied defendants’ motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.

In support of a cross motion for summary judgment, plaintiff submitted an affidavit by plaintiff’s owner who asserted that the subject claim forms were submitted to defendants on or before October 20, 2007, that the claims had not been paid, and that statutory interest was to be computed as of 30 days after each claim’s submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff’s owner, must be deemed to have been in November 2007, that is, 30 days after defendants’ receipt of the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc 3d 132[A], [*2]2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2018, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendants’ motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan 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 October 2, 2019. 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 first and third through tenth causes of action are denied, and the branch of plaintiff’s motion seeking summary judgment on the first cause of action is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Defendant denied the claim underlying the first cause of action on the ground that written instructions for physical therapy should have been included in plaintiff’s assignor’s medical records for services billed under CPT code 97001 of the workers’ compensation fee schedule. However, as plaintiff argues, defendant did not request any additional verification from plaintiff seeking the information it felt it required in order to review this claim. Consequently, defendant was not entitled to summary judgment dismissing the first cause of action, and, under the circumstances presented, the branch of plaintiff’s motion seeking summary judgment on that [*2]cause of action should have been granted (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 175 AD3d 455 [2019]).

With respect to the second cause of action, contrary to plaintiff’s contention, plaintiff’s conclusory assertion that it never received the check defendant had mailed to pay this claim was insufficient to raise a triable issue of fact (see Matter of Rodriguez v Wing, 251 AD2d 335 [1998]).

With respect to the third through tenth causes of action, plaintiff correctly argues that defendant failed to show, as a matter of law, that the independent medical examination (IME) scheduling letters were properly addressed and generated pursuant to the standard practices and procedures of its IME scheduling vendor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, the affirmation from the doctor who was scheduled to perform the IMEs did not establish that he possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. In addition, defendant failed to establish, as a matter of law, that the amounts charged in these claims were improperly billed or in excess of the amounts permitted by the workers’ compensation fee schedule. Therefore, defendant failed to establish its entitlement, as a matter of law, to summary judgment dismissing the third through tenth causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

However, plaintiff failed to establish its prima facie entitlement to summary judgment upon the third through tenth causes of action, as plaintiff did not establish either that defendant failed to timely deny the claims (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant 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]). Thus, the branches of plaintiff’s motion seeking summary judgment on these causes of action were properly denied.

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through tenth causes of action are denied, and the branch of plaintiff’s motion seeking summary judgment on the first cause of action is granted.

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

Index No.: CV-700046-20/QU

Plaintiff’s counsel: Law Offices of Gabriel & Shapiro LLC, 3361 Park Avenue Suite 1000, Wantagh, NY 11793

Defendant’s counsel: Rivkin Radler LLP, 926 RexCorp Plaza, Uniondale, NY 11556

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

II. Background

In a summons and complaint filed July 12, 2018, Defendant commenced an action in Supreme Court, Nassau County (“Supreme Court Action“) against Plaintiff seeking a judgment declaring that Defendant owed no duty to pay Plaintiff’s No-Fault claims because Plaintiff failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Aff. of Pontrello, Ex. 3). In a summons and complaint filed January 2, 2020, Plaintiff sued Defendant insurance company to recover $346.52 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Martinez from September 8 to 27, 2017, for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Pontrello Aff., Ex. 1). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, [*2]111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). Here, Defendant relied on an order dated October 4, 2019 (“Supreme Court Order“) in the Supreme Court Action, in which Supreme Court denied Plaintiff’s motion to compel arbitration, finding that Plaintiff “failed to satisfy the requirement of insurance coverage by appearing for the examination under an oath as noticed by” Defendants (State Farm Mut. Auto. Ins. Co. v Fine Needle Acupuncture, PC, Sup. Ct. Nassau County, October 4, 2019, Brandveen, J., Index No. 609282/18; Motion, Pontrello Aff., Ex. 4). Since the Supreme Court Order was not an order granting Defendant a default judgment, as Defendant erroneously contended, here, Defendant failed to demonstrate that res judicata bars the present action.

Nevertheless, the related concept of collateral estoppel bars Plaintiff’s action. Collateral estoppel or issue preclusion prevents re-litigation of a factual or legal issue actually raised and resolved in a prior court determination (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]; Buechel v Bain, 97 NY2d 295, 303 [2001]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 152 [2d Dept 2021]; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d 931, 931-32 [2d Dept 2021]). In order to apply collateral estoppel, “there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-04; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d at 932). In our instant case, both factors have been established. In the Supreme Court Action, Supreme Court found that Plaintiff failed to appear for the scheduled EUOs and did not challenge that Defendant requested the EUOs and had a valid reason for requesting them. It is well settled that noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Since Plaintiff is collaterally estopped from raising the issue of its non-attendance of the EUOs in the instant matter and Defendant presented evidence that it had timely denied Plaintiff’s claim based on Plaintiff’s failure to attend the EUOs (see Motion, Pontrello Aff., Ex. A), Defendant here is entitled to dismissal of Plaintiff’s complaint.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted without opposition and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Index No. CV-725161-20/QU

Plaintiff’s counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Center, NY 11570

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion in its claims:

Defendant’s Notice of Motion and Affirmation in Support dated April 4, 2021 (“Motion“) and filed with the court on April 26, 2021. 1
Plaintiff’s Cross-Motion and Affirmation in Support dated August 4, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2
Defendant’s Affirmation in Opposition dated December 27, 2021 (“Opposition“) and electronically filed with the court on December 30, 2020. 3

In a summons and complaint filed on December 18, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,359.40 in unpaid first party No-Fault benefits for medicine prescribed to Plaintiff’s assignor Viera on September 24, 2020, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved for summary judgment dismissing the complaint on the grounds that Plaintiff lacked standing, and alternatively that Defendant timely denied Plaintiff’s claim based on lack of medical necessity. Plaintiff cross-moved for summary judgment on its claim against Defendant. An oral argument by both parties was conducted by this Court.

III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Defendant contended that Plaintiff lacked standing to bring action on its claim for No-Fault benefits provided to Viera and alternatively that the treatment Plaintiff provided to Viera was not medically necessary. Defendant argued Plaintiff lacked standing because the assignment of benefits was executed by Viera, who was a minor. Here, even assuming that it was improper for a minor to execute an assignment of benefits as Defendant contended (see 11 NYCRR 65-3.11[a]), Plaintiff presents prima facie entitlement to No Fault benefits by presenting an assignment of benefits form where Defendant fails to timely seek verification of the assignment’s validity (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007], see Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 46 Misc 3d 129[A], 2014 NY Slip Op 51810[U] *1 [App Term 2d Dept 2014]). Moreover, Defendant’s failure to timely object to the assignment waived any defenses based on any deficiencies in the assignment (Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348 [2d Dept 2005]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50488[U] *2 [App Term 2d Dept 2010], see Beal-Medea Prods., Inc. v Geico Gen. Ins. Co., 51 Misc 3d 138[A], 2016 NY Slip Op 50594[U] *1 [App Term 2d Dept 2016]).

Regarding medical necessity, Defendant’s denial on that ground must completely and clearly state the reason for denial of the claim and apprise Plaintiff of the grounds upon which [*2]disclaimer is based (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] *1 [App Term 2d Dept 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] *1 [App Term 2d Dept 2003], see Delta Diagnostic Radiology, P. C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 126[A], 2006 NY Slip Op 52370[U] *2 [App Term 2d Dept 2006], see e.g., Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19, 21 [App Term 2d Dept 2013]). To support the contention that the prescribed medication was not medically necessary, Defendant presented the affirmation of Agrawal, M.D., dated November 3, 2020. Dr. Agrawal attested that Viera “was prescribed Lidocaine 5% ointment by Dr. Hausknecht, which was not medically necessary and not causally related as it is not supported by enough evidence. Lidocaine is questionable in a 15-year-old [sic] as efficacy, especially given the side effects of cardiac arrythmia and seizures. Her pain seems to be causally related, but I question this aggressive testing and treatment in a 15 year old child” (Motion, O’Shea Aff., Ex. C at 6). Dr. Agrawal’s opinion that the medication prescribed was not medically necessary was entirely conclusory (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). In addition, while Dr. Agrawal addressed the advisability of the medication prescribed for Plaintiff, nowhere did Dr. Agrawal state that such treatment was unnecessary. Therefore, Defendant’s denial on the ground of medical necessity was factually insufficient and may not be raised as a defense to Plaintiff’s claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U] *2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1-2).

Regarding Plaintiff’s Cross-Motion, Plaintiff’s sole contention was that Defendant’s payment or denial of Plaintiff’s claim was untimely. Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term 2d Dept 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Plaintiff pointed to its bill and Defendant’s denial of claim form which indicated that Defendant received Plaintiff’s bill for $1,359.40 on October 28, 2020 (see Motion, O’Shea Aff., Ex. C). A denial of claim form, however, is insufficient to establish a medical provider’s prima facie case but suffices to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). Although Defendant’s denial of claim form established Defendant’s timely denial of the claim, as discussed above, Defendant failed to establish the lack of medical necessity of prescribed medication upon which Plaintiff based its claim (Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). Therefore, Plaintiff has demonstrated entitlement to summary judgment on its claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U]*2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint (Motion Seq. #1) is denied; and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant (Motion Seq. #2) is granted; and it is further

ORDERED that the Clerk shall enter judgment in Plaintiff’s favor and against Defendant in the amount of $1,359.40 together with statutory interest from October 28, 2020 and statutory attorneys’ fees.

This constitutes the court’s Decision and Order

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas A. Torto, Esq. (Thomas Torto and Jason Levine of counsel), for respondent.

Appeals from orders of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered February 27, 2019 and April 14, 2020. The February 27, 2019 order, insofar as appealed from as limited by the brief, sua sponte tolled the accrual of all no-fault statutory interest. The April 14, 2020 order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking to vacate and/or modify so much of the February 27, 2019 order as was made sua sponte.

ORDERED that the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from so much of the February 27, 2019 order as sua sponte tolled the accrual of all no-fault statutory interest is dismissed as no appeal as of right lies from an order made sua sponte; and it is further,

ORDERED that the April 14, 2020 order, insofar as appealed from, is modified by providing that no-fault statutory interest is tolled from June 27, 1997 until April 5, 2018; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In 1995, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to his assignor for injuries allegedly sustained in a motor vehicle accident in August 1994. Defendant appeared and answered. After defendant failed to appear for trial in May 1997, an inquest was held in June 1997, following which a written decision dated June 27, [*2]1997 was issued awarding plaintiff judgment in the sum of $1,480 with interest from April 21, 1995. On April 5, 2018, plaintiff moved for “an Order compelling the clerk to enter judgment based upon the inquest held in this matter.” Defendant cross-moved to dismiss the action, arguing that plaintiff had failed to submit a proposed judgment within 60 days pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a). By order entered February 27, 2019, the Civil Court found that all no-fault statutory interest should be tolled because plaintiff had unreasonably delayed in seeking to enter judgment (see former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]) and directed the clerk “to enter judgment . . . for the Plaintiff in the amount of $1,480.00 with no prejudgment interest,” and denied defendant’s cross motion. Defendant has since paid the sum of $1,480.

Thereafter, plaintiff moved for, among other things, an order “vacating and/or modifying that portion of the Court’s [February 27, 2019] order . . . that is sua sponte.” Defendant opposed the motion. By order entered April 14, 2020, the Civil Court denied the branch of plaintiff’s motion seeking to vacate and/or modify the sua sponte portion of the February 27th order, stating that plaintiff would not be awarded any prejudgment interest, and finding that no portion of the February 27th order was made sua sponte.

As limited by his brief, plaintiff appeals from so much of the February 27, 2019 order as sua sponte tolled the accrual of all no-fault statutory interest and from so much of the April 14, 2020 order as denied the branch of plaintiff’s motion seeking to vacate and/or modify the portion of the February 27, 2019 order as was made sua sponte. The appeal from so much of the February 27, 2019 order as sua sponte tolled the no-fault statutory interest pursuant to 11 NYCRR 65-3.9 (d) is dismissed as it did not address a demand for relief made on notice and, therefore, is not appealable as of right (see CCA 1702 [a]; Sholes v Meagher, 100 NY2d 333 [2003]; Biotech Surgical Supply, Inc. v Country Wide Ins. Co., 66 Misc 3d 135[A], 2019 NY Slip Op 52143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

As to the April 14, 2020 order, we agree with the Civil Court’s determination pursuant to former 11 NYCRR 65.15 (h) (now 11 NYCRR 65-3.9 [d]) that plaintiff unreasonably waited more than 20 years before moving to have a judgment entered upon the decision issued after the inquest. The no-fault regulations provide that, “[i]f an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). A no-fault plaintiff “should not be rewarded for his years of inaction by receiving a windfall of interest” (Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Contrary to plaintiff’s argument, this case is not analogous to cases in which we have held that interest should not be tolled between a settlement and the entry of a judgment upon the settlement (see e.g. Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). A settlement is the resolution of a case to which both parties have agreed, and the entry of a judgment is only permitted where a settling defendant fails to do what it has promised to do: pay the agreed-upon sum within 21 days of tender of the required paperwork (see CPLR 5003-a). In contrast, a case that goes to inquest or trial concludes in a judgment, and plaintiff should not be awarded a windfall of punitive interest because he failed to enter a judgment for more than 20 years after the inquest. Thus, so much of the February 27, 2019 order as tolled the no-fault [*3]statutory interest from June 27, 1997, the date of the decision after inquest, until April 5, 2018, when plaintiff moved to enter a judgment based upon that decision, was proper and the Civil Court correctly declined to vacate that part of the order.

However, the Civil Court should have vacated so much of the February 27, 2019 order as declined to award interest from April 21, 1995 until June 27, 1997, which interest was awarded by the June 27, 1997 decision, as there has been no finding that plaintiff unreasonably delayed this case during that period. We note that since the subject accident took place in 1994, no-fault statutory interest should be calculated at a compounded rate (see former 11 NYCRR 65.15 [h] [1]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Plaintiff’s remaining arguments regarding interest lack merit.

Accordingly, the April 14, 2020 order, insofar as appealed from, is modified by providing that no-fault statutory interest is tolled from June 27, 1997 until April 5, 2018.

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

Decided on September 9, 2022

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