The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 7, 2021. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint, denied plaintiff’s cross motion for summary judgment, and denied, as moot, plaintiff’s separate motion to dismiss the affirmative defenses.

ORDERED that, on the court’s own motion, the caption is amended to reflect the addition of Harleysville Worcester 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.

Healthwise Medical Associates, P.C. (Healthwise) commenced this action against defendant Nationwide Ins. (Nationwide) to recover assigned first-party no-fault benefits for medical services provided to its assignor, Reynaldo Rosa, as a result of injuries Rosa allegedly sustained in an automobile accident on July 6, 2016, under claim number 655439-GD. Harleysville Worcester Insurance Company (Harleysville) appeared in the action by serving and filing an answer in which it characterized itself as having been incorrectly sued as Nationwide, thereby agreeing that the allegations in the complaint were properly asserted against it.

Before Healthwise commenced this action, Harleysville had commenced a declaratory judgment action in Supreme Court, Nassau County, against Healthwise, among other providers, and its assignor, Rosa, alleging that Harleysville had no duty to pay no-fault benefits to the named defendants therein, as Rosa was not an eligible injured person pursuant to the no-fault regulations, and, thus, not covered under the insurance policy. In an order dated June 20, 2018 and entered August 29, 2018, the Supreme Court, upon defaults in appearing in the action by, insofar as is relevant here, both Rosa and Healthwise, granted an unopposed motion by Harleysville for summary judgment, declared “that Harleysville is not required to provide insurance coverage to [Rosa and Healthwise] for any claims arising out of the date of loss of July 6, 2016, Nationwide claim number 655439-GD.”

Harleysville thereafter moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. Healthwise cross-moved for summary judgment and to dismiss Harleysville’s affirmative defenses. Healthwise also separately moved to dismiss Harleysville’s affirmative defenses. By order dated October 7, 2021, the Civil Court granted Harleysville’s motion, denied Healthwise’s cross motion for summary judgment, and also denied, as moot, Healthwise’s separate motion to dismiss the affirmative defenses. The court stated,

“Defendant has presented the Declaratory Judgment Order of the Supreme Court, County of Nassau, dated June 20, 2018, under Index Number 611998/2017, which declared that HARLEYSVILLE, a subsidiary company of NATIONWIDE and the underwriter of the subject policy of insurance, has no obligation to provide No-Fault reimbursement to Plaintiff with regard to the claims under NATIONWIDE claim number 655439-GD and the date of accident of July 6, 2016, at issue.”

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

On appeal, the only issue raised by Healthwise with respect to so much of the Civil Court’s order as granted Harleyville’s motion is whether the Supreme Court order entered August 29, 2018 should have res judicata effect on this action, thereby warranting the dismissal of the complaint herein. “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]). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in determining that Harleysville’s declaratory judgment order has res judicata effect on this action, as Harleysville 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],[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2020]). Under the circumstances presented, the Civil Court correctly granted Harleysville’s motion and, in effect, dismissed the complaint in its entirety, as any judgment in favor of Healthwise in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 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]).

Accordingly, the order is affirmed.

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

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

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