Decided on December 3, 2021

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

Decided on November 26, 2021

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

Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. The Law Offices of Florence D. Zabokritsky, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 5, 2019. The order denied defendant’s motion to sever the claim of each assignor into separate actions.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to sever the claim of each assignor into separate actions is granted.

In this action by a provider to recover first-party no-fault benefits assigned to it by two assignors, defendant appeals from an order of the Civil Court which denied defendant’s motion pursuant to CPLR 603 to sever the cause of action seeking to recover upon a claim for supplies furnished to Joe Chaluisant from the remaining cause of action seeking to recover upon a claim for supplies furnished to Robert Murray. Defendant’s counsel asserted that the claims had arisen out of two different accidents and that defenses relating to each claim differed. The Civil Court denied defendant’s motion.

While the decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 61 Misc 3d [*2]152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), in this instance, severance is warranted.

The complaint alleges that the claims arose out of separate accidents which occurred on different dates. The record further reveals that while one claim was denied on the ground of lack of medical necessity, the other claim was denied due to a failure to cooperate with defendant’s attempt to investigate the alleged accident. As such, different questions of fact and law are involved, and defendant’s motion to sever the causes of action should have been granted (see Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co., 65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U]; cf. Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of NY, 71 Misc 3d 132[A], 2021 NY Slip Op 50323[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed and defendant’s motion to sever the claim of each assignor into separate actions is granted.

ELLIOT, J.P., WESTON and GOLIA, JJ., concur.

Decided on November 12, 2021

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. McCormack, Mattei & Holler (Jamila Shukry of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered March 14, 2019. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,176.95.

In this action by a provider to recover the principal sum of $1,176.95 in assigned first-party no-fault benefits for durable medical products it sold to its assignor in June 2015, a nonjury trial was held. At the trial, a “Trial Stipulation” was admitted into evidence which stated that both sides had “established their respective prima facie burdens” and “[t]he only remaining issues to be resolved at trial are those defenses which are preserved in defendant’s timely denials and any non-waivable defenses.” Plaintiff rested its case after the stipulation was admitted into evidence.

In support of defendant’s affirmative defense that plaintiff was not properly licensed at the time it sold the durable medical equipment to its assignor, defendant’s witness, its senior litigation representative, testified that she had made a Freedom of Information Law (FOIL) request in order to find out whether plaintiff had a Department of Consumer Affairs license during the time period of January 2010 to June 2016. The representative testified that she had received a response that “No records were found for Quality Health Supply Corp. Inc.” Certified copies of the FOIL request and response were admitted into evidence at trial.

Following the trial, the Civil Court found that plaintiff was not entitled to recover no-fault benefits because it was not licensed at the time the products were sold to the assignor, and dismissed the complaint. A judgment was subsequently entered on March 14, 2019.

Upon a review of the record, we find that the testimony of defendant’s senior litigation representative, as well as the certified FOIL documents entered into evidence at trial, were insufficient to establish that plaintiff did not have a Department of Consumer Affairs license for the time period of January 2010 to June 2016 (cf. Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). The FOIL evidence solely established that a company named “Quality Heath Supply Corp. Inc.” was not licensed during this time period and no evidence was provided that plaintiff “Quality Health Supply Corp.” is the same entity as “Quality Health Supply Corp. Inc.” As there was no other evidence to establish that plaintiff was not properly licensed at the time it sold the durable medical products to its assignor, plaintiff should have been awarded a judgment in its favor.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,176.95.

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

Decided on October 8, 2021

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

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jamin Koo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 19, 2019. The order, insofar as appealed from and as limited by the brief, 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, and plaintiff cross-moved for summary judgment. By order entered September 19, 2019, the Civil Court denied defendant’s motion and plaintiff’s cross motion, and limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff’s assignor failed to appear for duly scheduled independent medical examinations (IMEs), and whether the amounts sought by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule. As limited by the brief, defendant appeals from so much of the order as denied defendant’s motion.

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Contrary to the determination of the Civil Court, defendant demonstrated that, before it [*2]received the claims at issue, it had properly scheduled IMEs of plaintiff’s assignor, and that the assignor failed to appear for those duly scheduled IMEs (see id.; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint. In view of the foregoing, we reach no other issue.

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

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

Law Offices of Tina Newsome-Lee (Michael L. Rappaport of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from a decision and order (one paper) of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered March 12, 2020. The decision and order awarded plaintiff the sum of $164.01.

ORDERED that the appeal is dismissed.

In this action to recover assigned first-party no-fault benefits, the Civil Court (Odessa Kennedy, J.), by order dated November 16, 2017, directed, “The sole issue for trial is for [defendant] to establish its fee schedule defense.” In lieu of a trial, the parties submitted memoranda, and no testimony was taken. Defendant appeals from a “decision and order” of the Civil Court (Carolyn Walker-Diallo, J.), which was entered on March 12, 2020 and awarded plaintiff the sum of $164.01. No judgment has been entered.

To the extent that the March 12, 2020 “decision and order” constitutes an “order,” in that it appears that the parties requested a “Decision ordering” relief, the paper is not appealable as of right because it did not decide a motion made upon notice (see CCA 1702 [a] [2]; CPLR 2211; Mautner-Glick Corp. v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52320[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and we decline to grant leave to appeal. To the extent that the March 12, 2020 “decision and order” constitutes a decision, no appeal lies from a decision (see Schicchi v J.A. [*2]Green Constr. Corp., 100 AD2d 509 [1984]; AR Med. Rehabilitation, P.C. v MVAIC, 65 Misc 3d 138[A], 2019 NY Slip Op 51683[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the appeal is dismissed.

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

 Gary Tsirelman, P.C. (Stefan Belinfanti and Gary Tsirelman of counsel), for appellant. Law Office of Tina Newsome-Lee, for respondent Travelers Property & Casualty Ins. Co. (no brief filed). Law Office of Goldstein, Flecker & Hopkins (Tali K. Hernstat of counsel), for respondent GEICO Casualty Insurance.

Appeals from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.; op 67 Misc 3d 171 [2020]), entered January 3, 2020. The order, insofar as appealed from, upon, in effect, granting the branch of plaintiff’s motion seeking to consolidate 27 actions, including the above-captioned 11 actions, for the purposes of the disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions.

ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff’s motion seeking to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff’s motion, and by further vacating the Civil Court’s findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion; as so modified, the order, insofar as appealed from, is affirmed, without costs.

These actions by a provider to recover assigned first-party no-fault benefits were commenced in 2000 and 2001. In 2009, plaintiff corporation voluntarily dissolved. In 2017, plaintiff brought the instant motion seeking to, among other things, consolidate the various [*4]actions for purposes of the motion and to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each action. Insofar as is relevant to this appeal, by order entered January 3, 2020, the Civil Court, upon, in effect, granting the branch of the motion seeking to consolidate the above-captioned actions for purposes of disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions (Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co., 67 Misc 3d 171 [Civ Ct, Queens County 2020]).

With respect to the action against Travelers Property & Casualty Ins. Co., the Civil Court denied plaintiff’s motion “due to Plaintiff’s failure to provide proof of service.” Since there was no argument made on this appeal that the action against Travelers Property & Casualty Ins. Co. was improperly dismissed, we do not disturb that part of the order.

With respect to the 10 actions against GEICO Casualty Insurance, the court found that plaintiff, as a dissolved corporation, was no longer winding up its affairs (see Business Corporation Law §§ 1005, 1006) and thus was required to be substituted pursuant to CPLR 1017. The court further found that plaintiff had not sought substitution within four months or “a reasonable time” (CPLR 1021) following its dissolution, and, thus, had no standing to bring the instant motion.

With certain exceptions not applicable here, “a corporation or voluntary association shall appear by attorney” (CPLR 321 [a]), and “[a] party’s choice of counsel is a substantive right not to be taken away absent some overriding public interest” (Petrossian v Grossman, 219 AD2d 587, 588 [1995]). As plaintiff cannot take any action or make any arguments in the cases involving GEICO Casualty Insurance without an attorney, we vacate so much of the order as denied the branches of plaintiff’s motion seeking to substitute counsel in these 10 actions and grant those branches of the motion. In light of the foregoing, any findings made by the Civil Court regarding whether plaintiff needed to be timely substituted (see CPLR 1017, 1021) and/or whether plaintiff was properly still winding up its affairs (see Business Corporation Law §§ 1005, 1006) were premature and are vacated.

Accordingly, the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff’s motion seeking to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff’s motion, and by additionally vacating the Civil Court’s findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion.

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

The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (C. Stephen Hackeling, J.), dated April 16, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential Health Chiropractic, P.C. and denied the cross motion by Essential Health Chiropractic, P.C. for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied; as so modified, the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs’ assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Insofar as is relevant to this appeal, plaintiff Essential Health Chiropractic, P.C. (Essential) opposed the motion and cross-moved for summary judgment. Essential appeals from so much of the order of the District Court as granted the branch of [*2]defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential and denied the cross motion by Essential for summary judgment.

While defendant made a prima facie showing that the NF-10 forms denying claims which Essential had submitted were mailed, the affidavit of Essential’s owner was sufficient to raise an issue of fact as to whether the denial of claim forms at issue had been mailed to Essential (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). As an issue of fact exists, neither defendant nor Essential is entitled to summary judgment on so much of the complaint as was asserted by Essential (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The record before us also indicates that defendant failed to establish that it had timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) letters scheduling EUOs of Essential’s assignor, for which Essential’s assignor failed to appear, and that the assignor had also failed to appear for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment dismissing Essential’s claims based upon the assignor’s failure to comply with conditions precedent to coverage (see id.).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied.

VOUTSINAS, J.P., EMERSON and DRISCOLL, JJ., concur.