The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Michael Philippou of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated November 16, 2021. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking a permanent stay of the action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking a permanent stay of the action is denied.

Plaintiff commenced this action in August of 2018 to recover assigned first-party no-fault benefits for medical services he had provided to his assignor in December 2017 and January 2018 as a result of injuries allegedly sustained in an automobile accident on November 14, 2017. As limited by his brief, plaintiff appeals from so much of an order of the Civil Court (Matthew P. Blum, J.) dated November 16, 2021 as granted the branch of defendant’s motion seeking a permanent stay of the instant action based on the doctrines of collateral estoppel and/or res judicata as a result of an “order and judgment” (declaratory judgment order) issued by the Supreme Court, New York County (Gerald Lebovits, J.), on February 21, 2017. In the declaratory judgment order, the Supreme Court found that no-fault actions that had been commenced by plaintiff herein as a result of an accident on November 7, 2013 were permanently [*2]barred because plaintiff herein had been operating in violation of various New York State laws and therefore was not entitled to recover no-fault payments (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Plaintiff correctly argues that the Civil Court improperly applied the declaratory judgment order beyond its explicit purview so as to include this action, which was commenced more than eight months after the declaratory judgment order was issued (see Parisien v Zipcar, 77 Misc 3d 132[A], 2022 NY Slip Op 51245[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Active Care Med. Supply Corp. v Titan Ins.Co., 66 Misc 3d 144[A], 2020 NY Slip Op 50183[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Contrary to defendant’s contention that collateral estoppel effect should be given to the issue decided by the declaratory judgment order, namely that plaintiff was operating in violation of various New York State laws and not entitled to recover no-fault benefits, that issue is not identical to an issue to be decided in this case. The February 2017 declaratory judgment order could not have decided the issue of whether, in December of 2017 and January of 2018, plaintiff was continuing to operate in such a way that would preclude it from recovering any no-fault payments for the medical treatment rendered in connection with the November 14, 2017 accident. Thus, collateral estoppel does not apply here.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking a permanent stay of the action is denied.

TOUSSAINT, P.J., MUNDY and VENTURA, JJ., concur.

Decided on July 21, 2023

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), entered April 5, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits arising out of a March 9, 2015 accident, defendant moved for summary judgment dismissing the first through fifth and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and dismissing the sixth cause of action on the ground that it was barred by an April 18, 2019 declaratory judgment issued by the Supreme Court, Nassau County, in an action commenced by defendant herein against plaintiff herein in regard to the same March 9, 2015 accident. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered April 5, 2022, the Civil Court (Ellen E. Edwards, J.) granted defendant’s motion for summary judgment on the ground that plaintiff had failed to appear for duly scheduled EUOs and denied plaintiff’s cross-motion.

“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 [*2]Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

With respect to the branch of defendant’s motion seeking summary judgment dismissing the sixth cause of action, defendant demonstrated that the assignor, accident date, and date of service in the Supreme Court declaratory judgment action were identical to those for the claim underlying the sixth cause of action in the instant case. Consequently, that cause of action was barred under the doctrine of res judicata by virtue of the April 18, 2019 declaratory judgment and, thus, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing that cause of action (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), albeit on other grounds, since a judgment in favor of plaintiff upon the sixth cause of action in this action would destroy or impair rights or interests established by the declaratory judgment (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Contrary to plaintiff’s sole contention on appeal with respect to so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing the first through fifth and seventh causes of action, the affidavit of defendant’s employee was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing those causes of action.

Accordingly, the order is affirmed.

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 9, 2021. 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 on the ground that plaintiff failed to provide requested verification. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. In an order entered December 9, 2021, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion and, upon implicitly denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that plaintiff timely submitted the bills at issue to defendant. As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment.

The proof submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed its initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that defendant had not received the requested verification (see American Kinetics Lab, Inc. v GEICO Gen. Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51267[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). As defendant further demonstrated that it had timely denied plaintiff’s [*2]claims (see 11 NYCRR 65-3.5 [o]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16, 18-19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Plaintiff’s owner’s statement that he had mailed the requested verification “to the extent such responses were proper and in [his] possession” does not raise a triable issue of fact, as it does not “demonstrate that [plaintiff] had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 2022 NY Slip Op 50623[U], *1-2; see 11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 2019 NY Slip Op 50576[U], *1). To the extent plaintiff argues that the verification requests were improper since they were issued after plaintiff had appeared for an examination under oath (EUO), this argument lacks merit, as the EUO pertained to claims for a different assignor, and was held five months before the claims at issue were submitted.

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

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Short & Billy, P.C. (Andrew S. Midgett, Skip Short, and Greenberg Traurig, New York, NY [James W. Perkins], of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 8, 2020. The order, insofar as appealed from, granted that branch of the defendant’s motion which was to disqualify the plaintiff’s counsel, The Law Office of Jason Tenenbaum, P.C.

Ordered that the order is affirmed insofar as appealed from, with costs.

In 2019, the plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages. The principal of nonparty The Law Office of Jason Tenenbaum, P.C., counsel for the plaintiff (hereinafter counsel for the plaintiff), had previously represented the defendant in hundreds of no-fault actions. The defendant moved, among other things, to disqualify counsel for the plaintiff from representing the plaintiff in this action based upon Tenenbaum’s prior representation of the defendant. In an order entered December 8, 2020, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was to disqualify counsel for the plaintiff. The plaintiff appeals. We affirm.

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” (Delaney v Roman, 175 AD3d 648, 649 [2019] [internal quotation marks omitted]; see Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]). Although a party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right, that right “will not supersede a clear showing that disqualification is warranted” (Matter of Marvin Q., 45 AD3d 852, 853 [2007]; see Scopin v Goolsby, 88 AD3d 782, 784 [2011]). “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and . . . opposing [counsel], (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Delaney v Roman, 175 AD3d at 649 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety (see Delaney v Roman, 175 AD3d at 649; Janczewski v Janczewski, 169 AD3d 773, 774 [2019]).

[*2] Here, the defendant established that counsel for the plaintiff had a prior attorney-client relationship with the defendant, that the issues involved in his prior representation of the defendant were substantially related to the issues involved in his firm’s current representation of the plaintiff, and that the interests of the plaintiff and the defendant were materially adverse (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.9; Delaney v Roman, 175 AD3d at 650).

Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to disqualify counsel for the plaintiff from continuing to represent the plaintiff in this action. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Short & Billy, P.C., New York, NY (Andrew S. Midgett and Christopher O’Donnell of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 1, 2020. The order denied that branch of the plaintiff’s motion which was to compel discovery without prejudice to renew.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages arising out of a 2016 motor vehicle accident. The plaintiff served discovery demands on the defendant. Thereafter, following the defendant’s responses, in 2020, the plaintiff moved, among other things, to compel the defendant to respond to the discovery demands. In an order entered December 1, 2020, the Supreme Court denied that branch of the plaintiff’s motion without prejudice to renew. The court determined that the motion papers were missing copies of the discovery demands served on the defendant and details about what discovery remained outstanding. The plaintiff appeals.

“ ’Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ ” (Matter of Metro-North Train Acc. of Feb. 3, 2015, 178 AD3d 929, 930 [2019], quoting Morales v Zherka, 140 AD3d 836, 836-837 [2016]; see Honghui Kuang v MetLife, 159 AD3d 878, 881 [2018]). CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The phrase ‘material and necessary’ should be ‘interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ” (Friel v Papa, 56 AD3d 607, 608 [2008], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised” (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518 [2001]; see McBride v City of New York, 208 AD3d 579, 580 [2022]).

[*2] Contrary to the plaintiff’s contention, the Supreme Court properly denied, without prejudice, that branch of his motion which was to compel discovery. The motion papers failed to include copies of the discovery requests served on the defendant or a list of the discovery that remained outstanding.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff’s motion without prejudice to renew. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. The Law Offices of “Shay” Shailesh Deshpande, LLC (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lance P. Evans, J.), entered February 26, 2020. The order granted plaintiff’s motion to vacate the dismissal of the action, which dismissal had been based on plaintiff’s failure to proceed at trial, and to restore the action to the trial calendar.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion to vacate the dismissal of the action, which dismissal was based on plaintiff’s failure to proceed at trial (see Uniform Rules for NY Civ Ct [22 NYCRR] § 208.14 [b] [2]), and to restore the action to the trial calendar.

“Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal ‘it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action’ ” (SZ Med., P.C. v Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Contrary to defendant’s argument on appeal, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had demonstrated a reasonable excuse for its default, as plaintiff’s witness was out of the country at the time of the trial. [*2]Contrary to defendant’s further argument, plaintiff demonstrated that it has a meritorious cause of action (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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