[*1]

Jaffe & Asher LLP, White Plains (Marshall T. Potashner of counsel), for appellants.

Eppinger, Reingold & Korder, Larchmont (Mitchell L. Korder of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered September 21, 2022, which denied plaintiffs’ motion pursuant to CPLR 602 (b) to consolidate eight Civil Court actions with this action, unanimously reversed, on the law, without costs, and plaintiffs’ motion granted.

This action arises out of insurance claims based on an accident on December 30, 2020 in which defendant Melito Bonilla, while a passenger in a parked car, was injured when the car was struck by another vehicle. Each of the claims is under an insurance policy issued by plaintiffs that required Bonilla to appear for an examination under oath (EUO). Plaintiffs Liberty Mutual Insurance Company and LM General Insurance Company commenced this action on December 28, 2021, seeking a declaratory judgment, alleging that they do not owe no-fault coverage for medical fees in connection to Bonilla’s injuries because he failed to appear for an EUO.

After the action was commenced, two of Bonilla’s medical providers, Bay Ridge Chiropractic PC and Hudson Valley Chiro & Rehab PC, both of which are defendants in this action, brought eight actions, all in Richmond County Civil Court, seeking payment from Liberty for treatment of Bonilla’s alleged injuries. Liberty asserts that the same defense applies in each case, namely that it is not required to cover the injuries because Bonilla failed to appear for scheduled EUOs.

It was an improvident exercise of discretion to have denied plaintiffs’ motion to consolidate (see Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 340 [1st Dept 2006]). The issue of whether Bonilla failed to submit to the EUO, and whether such failure entitles Liberty to disclaim coverage for his alleged injuries and treatment, would affect the outcome of each of the cases, and Liberty would risk inconsistent verdicts and multiple trials if the Civil Court actions are not consolidated with this one (see Phoenix Garden Rest. v Chu, 202 AD2d 180, 180-181 [1st Dept 1994]). Moreover, in opposing plaintiffs’ motion, defendants have not argued that they would be prejudiced. Concur—Webber, J.P., González, Scarpulla, Rodriguez, JJ.

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

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

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about February 3, 2022, which granted petitioner Country-Wide Insurance Company’s (Country-Wide) petition to vacate a master arbitrator’s award, dated September 20, 2021, which affirmed a lower arbitrator’s award, dated May 31, 2021, in favor of respondent Refill Rx Pharmacy, Inc, as assignee of Kimberly Rosas (Refill) and against Country-Wide, in the amount of $2,715.48, and denied respondent’s cross motion for attorneys’ fees, unanimously affirmed, without costs.

Vacatur of the award was warranted under CPLR 7511 (b) (1) (iii) as the lower arbitrator exceeded his power by issuing an award exceeding the contractual limit for the subject no-fault coverage policy of $50,000, and the master arbitrator erred in affirming. Once a no-fault insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). An arbitrator’s award directing payment beyond the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; see also Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [1st Dept 2020]). Country-Wide was not precluded from raising the issue of policy exhaustion before the court, even if it was not before the arbitrators in the underlying arbitration (Matter of Ameriprise Ins. Co. at 564).

Country-Wide submitted an affidavit from its No-Fault Litigation/Arbitration supervisor, attesting that the instant claims file of Refill’s assignor, Ms. Rosas, reflects that the policy has been exhausted beyond its $50,000 limit. The affidavit also contains a ledger reflecting the dates that claims by various medical providers were paid, which exhausted Ms. Rosas’ policy. Thus, Country-Wide’s submissions showed that the policy was properly exhausted prior to the underlying arbitration (see 11 NYCRR 65-3.15).

In view of the foregoing, Refill is not entitled to the attorneys’ fees it requested (see 11 NYCRR 65-4.10 [j] [4]).

We have considered Refill’s remaining arguments and find them unavailing. Concur—Kapnick, J.P., Friedman, Kennedy, Mendez, Shulman, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Michael I. Kroopnick of counsel), for appellants.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondents.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered December 8, 2021, which, to the extent appealed from as limited by the briefs, denied defendants All City Family Healthcare, Aron Rovner, MD, PLLC, Averroes Physical Therapy PC, Burke Physical Therapy PC, Cavallaro Medical Supply, East 19 Medical Supply Corp., JSJ Anesthesia Pain Management PLLC, Jules F. Parisien, Longevity Medical Supply, Inc., LR Medical PLLC, Metro Pain Specialists, PC, Nova Medical Diagnostic, P.C., CMA Psychology, P.C., Danimark Physical Therapy PC, Fairpoint Acupuncture PC, and NYEEQASC, LLC’s (the Rybak defendants) motion to dismiss the complaint or, alternatively, to sever the claims, unanimously affirmed, without costs. Order, same court and Justice, entered December 8, 2021, which denied the Rybak defendants’ motion for a protective order, unanimously affirmed, without costs. Appeal from order, same court (Fidel E. Gomez, J.), entered June 14, 2022, which denied the Rybak defendants’ motion to sever the claims pursuant to the law of the case doctrine, unanimously dismissed, without costs, as academic.

On a motion to dismiss a declaratory judgment action for failure to state a cause of action, “the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him” (Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1st Dept 1969]). Here, plaintiffs stated causes of action for declaratory judgment. Contrary to the Rybak defendants’ contention, plaintiffs need not allege a proper claim for fraud in the complaint. Further, plaintiffs were not merely seeking an advisory opinion. Rather, their request for a declaration regarding the eligibility of defendants to recover no-fault benefits under the relevant policies amounts to a justiciable controversy sufficient to render declaratory judgment (State Farm Mut. Auto. Ins. Co. v Anikeyeva, 89 AD3d 1009, 1010-1011 [2d Dept 2011]).

The court providently exercised its discretion in declining to sever plaintiff’s claims into separate actions. Generally, “[t]o avoid the waste of judicial resources and the risk of inconsistent verdicts, it is preferable for related actions to be tried together” (Rothstein v Milleridge Inn, 251 AD2d 154, 155 [1st Dept 1998]). Although the Rybak defendants’ severance arguments carry some weight, after consideration of all relevant factors, including the potential prejudice that would be suffered by plaintiffs in having to litigate 32 separate actions involving many of the same parties and witnesses, the court properly declined to sever the claims (see Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569, 569-570 [2d Dept 1987]; cf. Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185, 185 [1st Dept 2004]). In view of the foregoing, the appeal from the order denying the Rybak defendants’ second motion to sever pursuant [*2]to the law of the case doctrine is dismissed as academic.

The court properly declined to dismiss the claims which had also been previously asserted by the Rybak defendants in separate Civil Court actions as Civil Court cannot grant the declaratory relief that plaintiffs seek here (see State Farm Fire & Cas. Co. v Jewsbury, 169 AD3d 949, 950-951 [2d Dept 2019]).

The court providently exercised its discretion in declining to grant the Rybak defendants a protective order to preclude plaintiffs from deposing them. Generally, a party seeking a protective order bears the initial burden of showing either that the discovery sought is irrelevant or that it is “obvious the process will not lead to legitimate discovery” (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Where a party seeking a protective order fails to “substantiate their conclusory claims,” the motion must be denied (Ocean to Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265, 266 [1st Dept 1988]). Here, the Rybak defendants did not meet their initial burden, as they simply asserted, in conclusory fashion, that they had no knowledge of the automobile accidents and did not witness the accidents, and thus could not attest to whether they had been staged (see id.; City Wide Social Work v NY Cent. Mut. Fire Ins. Co., 20 Misc 3d 134[A], 2008 NY Slip Op 51470[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The Rybak defendants’ affirmative defenses also support plaintiffs’ need to depose them. Concur—Kern, J.P., Kennedy, Scarpulla, Pitt-Burke, Higgitt, JJ.

[*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.

Decided on October 24, 2022

[*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.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5 [a], [b]; see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507 [1st Dept 2021]).

As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215 [f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).

Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215 [f]; see generally Pryor v New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). Concur—Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ.

[*1]

Thomas Torto, New York, for appellant.

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

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about February 4, 2021, which denied plaintiff’s motion for summary judgment as against defendants Healthway Medical Care P.C., Acupuncture Now P.C., SB Chiropractic, P.C., and Jules Francois Parisien MD, unanimously affirmed, without costs.

This appeal concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Jeffrey Delacruz was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Delacruz assigned his right to collect no-fault benefits under that policy to his treating medical providers. Those providers applied for no-fault benefits from Country-Wide but were denied.

Country-Wide then brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Delacruz or to the other defendants (all medical-provider assignees of Delacruz). Country-Wide moved for summary judgment on the ground that Delacruz’s failure to appear for scheduled examinations under oath (EUOs) defeats coverage under the no-fault policy, and thus forecloses the medical providers’ claim to benefits.

The court properly denied plaintiff’s motion for summary judgment as premature (see CPLR 3212 [f]). Plaintiff failed to provide a specific objective justification for requesting the examination under oath (EUO). Plaintiff’s reason for the EUO is essential for defendants to oppose plaintiff’s summary judgment motion and this fact is exclusively within the knowledge and control of the movant (11 NYCRR 65-3.5 [e]; see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; cf. Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Further, plaintiff concedes that it provided no response to defendants’ discovery demands for the “specific objective justification” for its request that the injured claimant submit to an EUO.

We have considered and reject all of plaintiff’s arguments that it is not required to provide claimants with the reason it requested the EUO. An insurer must affirmatively establish that it complied with the strict no-fault insurance claim procedures set forth in 11 NYCRR 65-3.5 (see generally PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). In the absence of any justification for the EUO, plaintiff has failed to establish, as a matter of law, that it complied with the governing regulations (11 NYCRR 65-3.5 [e]; AB Med. Supply at 671; Jaga Med. Servs. at 441; see also American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]).

The court properly rejected plaintiff’s contention that defendants waived any claim as to the reasonableness of the EUO notices by failing to object upon receipt. [*2]In its EUO notices, plaintiff provided no justification for these defendants to object to. In any event, the regulation does not require defendants to lodge any objection to the justification within a specific timeframe. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553, 555 [2d Dept 1999]) is inapposite. Concur—Renwick, J.P., Mazzarelli, Gesmer, González, JJ. [Prior Case History: 71 Misc 3d 247.]

Respondent appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated October 4, 2021, which granted the petition of Allstate Fire & Casualty Insurance Company to vacate a master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated October 4, 2021, affirmed, with $10 costs.

Civil Court properly vacated the master arbitrator’s award and denied respondent’s cross motion to confirm the award. When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co v Sawh, 272 AD2d 245 [2000][internal quotation marks omitted]). An arbitrator’s award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [2020]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]).

At the framed issue hearing on the issue of policy exhaustion, petitioner’s submissions were sufficient to establish that the policy had been exhausted on May 8, 2019 by payments of no-fault benefits to other health care providers and lost wages to the assignor before petitioner was obligated to pay the claim at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U][App Term, 1st Dept 2016]). The evidence includes the testimony of petitioner’s claims adjustor, coupled with the policy declaration page showing a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 limit for Optional Basic Economic Loss coverage, a payment ledger listing in chronological order the dates the claims by various providers were received and paid, and a [*2]ledger showing the dates and amounts of lost earnings reimbursed to the assignor. In response, respondent called no witnesses nor offered any evidence at the hearing.

Contrary to respondent’s contention, petitioner was not precluded by 11 NYCRR 65-3.15 from paying other legitimate claims subsequent to the denial of respondent’s claims (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U][App Term, 1st Dept 2015]). Adopting respondent’s position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent’s disputed claims “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). Respondent’s contention that the other claims paid by petitioner were not shown to be “verified” is unpreserved as a matter of law for this court’s review, no such argument having been raised at Civil Court (see Matter of Allcity Ins. Co. [Rodriguez], 212 AD2d 405 [1995]). The alleged defect in petitioner’s proof could have been raised at the framed issue hearing. An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance (see Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 349 [1955]; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307 [1991], lv denied 78 NY2d 856 [1991]).

Having admitted in its papers that the assignor was a pedestrian, respondent may not now claim that additional personal injury protection (APIP) benefits are payable because “there was no evidence … that assignor was a pedestrian.”

We have considered respondent’s remaining arguments and find them unavailing.

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

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

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.