Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A. (Ari Reiser of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated July 12, 2023. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a judgment entered on September 12, 2019 upon defendant’s failure to appear or answer the complaint and extended defendant’s time to serve its answer.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor for injuries he sustained in a motor vehicle accident which occurred on May 9, 2018. Plaintiff served the summons and complaint on the New York State Department of Financial Services (DFS) on April 18, 2019, pursuant to Insurance Law § 1212, and filed its affidavit of service on May 3, 2019. Defendant received the summons and complaint from the DFS on June 3, 2019 via regular mail. It is undisputed that defendant’s claims representative contacted plaintiff’s counsel’s office between June 12, 2019 and June 14, 2019, and defendant’s counsel contacted plaintiff’s counsel between June 27, 2019 and August 12, 2019, stating that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident and requesting that the lawsuit be voluntarily discontinued on the ground that the injuries were covered by workers’ compensation insurance. In an email sent on June 28, 2019, plaintiff’s counsel stated that she needed proof of these assertions, which defendant’s counsel provided via email on July 10, 2019. Defense counsel served an answer on [*2]July 1, 2019 and filed it on July 2, 2019. A default judgment was entered against defendant on September 12, 2019.

By notice of motion dated January 30, 2020, defendant moved to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint. Insofar as is relevant on appeal, defendant argued that the default judgment should be vacated, pursuant to CPLR 5015, as a timely answer had been served, and, in any event, defendant had a reasonable excuse for its delay in answering as well as a meritorious defense to the action. In support of its motion, defendant submitted the affidavits of its employees who averred that the summons and complaint was not received until June 3, 2019 and so the answer was timely. Any alleged delay in answering was due to the attempts of defendant’s employee and defendant’s counsel to obtain a voluntary discontinuance of the action. Defendant also submitted an affidavit by plaintiff’s assignor’s employment supervisor, in which the supervisor asserted that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which the assignor was injured. In opposition, plaintiff argued that defendant had not filed a timely answer and had otherwise failed to proffer a reasonable excuse for its delay in answering, and noted that plaintiff’s assignor, in his no-fault benefits application, had denied that the accident occurred within the scope of his employment. By order dated July 12, 2023, the Civil Court (Heela D. Capell, J.) granted the branch of defendant’s motion seeking to vacate the default judgment, finding that defendant had proffered a reasonable excuse for its delay in answering as well as a potentially meritorious defense, extended defendant’s time to serve its answer, and implicitly denied the branch of defendant’s motion seeking summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking to vacate the default judgment and extended defendant’s time to serve an answer.

Defendant established its entitlement to vacate the default judgment under CPLR 317. Although defendant specifically moved pursuant to CPLR 5015, under the circumstances presented, its motion to vacate the default judgment was also governed by CPLR 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Kircher v William Penn Life Ins. Co. of NY, 165 AD3d 1241 [2018]). A defaulting defendant who was “served with a summons other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108 [2017]). “There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay” (Kircher, 165 AD3d at 1243; Booso, 148 AD3d at 1108). Here, defendant established that it did not receive actual notice of the action until it received the summons and complaint from the DFS on June 3, 2019, and, thus, it did not have enough time to defend within the 30-day period set forth in CCA 402 (b).

Defendant also demonstrated the existence of a potentially meritorious defense to the action, as the affidavits of defendant’s employee and plaintiff’s assignor’s employment supervisor stated that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which he was injured, which would entitle him to workers’ compensation benefits (see Mani Med., P.C. v American Tr. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51185[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s [*3]motion seeking to vacate the default judgment.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), dated December 28, 2023. The order denied defendant’s motion for summary judgment dismissing the complaint.

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 of the Civil Court (Karen Lin, J.) denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the policy limits had been exhausted.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that the policy limits were exhausted before completed claims from plaintiff were received (see Alleviation Med. Servs., P.C., 55 Misc 3d 44, affd 191 AD3d 934; S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint. We reach no other [*2]issue.

Accordingly, the order is affirmed.

BUGGS, J.P., MUNDY and QUIÑONES, JJ., concur.

Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Upon the foregoing cited papers, pursuant to CPLR §3212 (g), the Decision and Order on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff proffered an affidavit, hereinafter referred to as Kuperman Affidavit, as a corroborating exhibit in opposition to Defendant’s Motion for Summary Judgment in a No-Fault case. The Kuperman Affidavit was offered to attest that all verification requests were timely responded to in rebuttal upon the shifting of the burden to Plaintiff to establish a triable issue of fact defeating Defendant’s judgment as a matter of law. Defendant did not object to the admissibility of the Kuperman Affidavit in its Reply to Plaintiff’s opposition. Rather, Defendant exhaustively and substantively argued against the contents and statements contained therein as sworn under oath truths. Defendant exhaustively availed itself of its full and fair opportunity to challenge the Kuperman Affidavit. However, it was at oral argument where Defendant first objected to the Kuperman Affidavit as being defective in form and thus inadmissible. The notarial acknowledgment contained the proper statutory stamp and statutory language dated 4th Day of February 2021 (CPLR 2106 pre — 1/1/2024 Amendment). Defendant argued however, [*2]that the signature line above “Notary Public” written in script clearly and unequivocally failed to bear the notary’s signature and rather upon which was written the word “February” (Kuperman Affidavit, Plaintiff’s Exhibit A NYSCEF #14). Defendant therefore argued that the Kuperman Affidavit was inadmissible and could not be considered in the decision-making analysis since it was not duly signed with the name of the notary. Plaintiff counsel conducting its oral argument was the named notary public on the notarial stamp. Plaintiff did not argue that Defendant had waived its right to object to the form of the Kuperman Affidavit pursuant to CPLR 2001. Nor did Plaintiff argue that it was a Scrivener’s error to be disregarded as a mere technical defect or curable upon application for leave of Court to correct (CPLR 2001; KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 60 [1st Dept 2024]). Rather, Plaintiff’s counsel countered that the written “February” in and of itself is his written signature. Plaintiff’s counsel further stated that he is the attorney at law notary public who signed the Kuperman Affidavit as “February”, which is his signature.^[FN1] Succinctly, Plaintiff’s counsel as the notary public argues that his signature is whatever he says it is and he is stating that he handwrote in script “February” above the notary public line and it is his signature thereby rendering the Kuperman Affidavit not defective and therefore admissible. This Court therefore ordered memoranda of law, inter alia, on the Question: What is a signature?

The quite ordinary task of signing with a uniquely scripted flourish of an individualized signature ^[FN2] , whether for the pleasantries of a thank you note, the solemnity of a Will, or the gravitas of legally binding documents in commerce, is generally taken for granted until consequences of its unlawful reproduction. From its ancient beginnings, methods of individualized personal identification and authentication had taken many forms.^[FN3] However, archeologically the oldest first known signature in the form of a stamped name on a clay tablet [*3]by the signatory ^[FN4] was in 3000BC. Although the scripted signature had been in use for centuries, it was legally codified into English law in 1677 by the enactment of the Statute of Frauds, which was also adopted by the American colonies at the time. Thereby mandating enforceable contracts shall be in writing and bear the signature ^[FN5] of the party to be legally bound as validation of the obligations contained therein. The signature has been defined as: “1a: the act of signing one’s name to something; 1b: the name of a person written with his or her own hand;”^[FN6] “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.” (NY CLS Gen Const § 46). “A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature” (NY CLS UCC § 3-401[2]). Although having its origins in ancient times and still recognized for the untrained, ill, or disabled is the signature by mark, “an indication usually in the presence of witnesses by a distinctive sign or mark (such as an X) of acquiescence in or assent to the content of a document by one unable to write”^[FN7] “The most important feature of a signature is that it reflect the intent of the signatory (People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016], citing People v Lo Pinto, 27 AD2d 63 [3d Dept 1966]). To that end, courts have routinely upheld various forms of markings as a valid signature” (id. citing In re Mack’s Will, 21 AD2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines, Inc. v Peach, 81 Misc 2d 211 [Sup Ct, Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v City of New York, 139 Misc. 691, 248 NYS 196 [1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).

Although the intent of the principal signatory to the substance of the document may be an element as to whether an adopted marking is indeed the signature of the principal signatory, not [*4]so for the notary public. The probing into the intent of the notary public’s signature in authenticating the signature of the principal signatory is antithetical to the legislative purpose of the notary public laws. The Notary public laws’ legislative purpose is to provide certitude of authentication by a governmental official licensed notary public. Although New York Law states that the notary stamp as the official statement of authority is required to include the name in black ink, it does not specifically state that a notary’s signature must be the name of the notary public, nor shall it be as affixed upon its oath of office as filed in the county clerk’s office. However, the “American Association of Notaries always recommends using your official, handwritten signature, exactly as it appears on your oath of office.”^[FN8] Thus for certitude of authentication as well as for an enhanced fraud deterrent, the notary public’s signature, whatever form it may take should be consistent with the signature as affixed upon the oath of office filed with the licensing county clerk’s office as an industry standard.^[FN9]

“In all the courts within this state the certificate of a notary public, over the signature of the notary public, shall be received as presumptive evidence of the facts contained in such certificate; provided, that any person interested as a party to a suit may contradict, by other evidence, the certificate of a notary public” (NY CLS Exec § 137). “A notary public who is duly licensed as an attorney and counsellor at law in this state may substitute the words ‘Attorney and Counsellor at Law’ for the words ‘Notary Public'”^[FN10] (id.; see NY CLS Exec § 135). Further,

“The notary public’s electronic signature is deemed to be reliable if the standards which have been approved through regulation by the secretary of state have been met. Such regulations shall include, but not be limited to, the requirements that such electronic signature be: (i) unique to the notary public; (ii) capable of independent verification; (iii) retained under the notary public’s sole control; (iv) attached to the electronic record; and (v) linked to the data in such a manner that any subsequent alterations to the underlying document are detectable and may invalidate the electronic notarial act. ”

(NY CLS Exec § 135-c 5 [b]). Although not specifically defined within the statutory language, it may be deduced that the notary’s signature is required to be unique, capable of independent [*5]verification and not an easily alterable nor reproducible representation yet consistent with the signature affixed upon the oath of office provided to the licensing County Clerk in which “notary public’s certificate of official character is filed” (NY CLS Exec § 137).

In this instant matter, Plaintiff counsel’s argument that his signature is whatever he says it is, is indeed consistent with statutory and case law for the lay person principal signatory, although such inconsistency may be problematic in personal transactions. Not so, for Plaintiff counsel’s signature as the notary public of the Kuperman Affidavit. His notary public signature cannot be fungible from one moment in time to another nor from one document to another. Rather, it must be reliably consistent with his unique, capable of independent verification and not easily alterable nor reproducible signature as affixed to his notarial oath of office filed in the Richmond County Clerk’s Office, pursuant to the legislative intent, purpose and the industry standards (Plaintiff’s Exhibit A, NYSCEF document #14). Of note, Plaintiff counsel as the notary public is also the attorney signatory to the Statement of Authorization for Electronic Filing of which his signature affixed thereto is not “February” (NYSCEF document #15). Nevertheless, Plaintiff counsel’s claim at oral argument that “February” as affixed in the Kuperman Affidavit is his signature is herein credited.^[FN11] Nevertheless, based upon the totality of the circumstances herein, This Court irrefutably finds that “February” is not his non-fungible notarial signature affixed to his notarial oath of office filed in the Richmond County Clerk’s Office. Therefore, This Court finds that the Kuperman Affidavit is defective in form for the failure of the notary public to have affixed his signature consistent with his signature that is affixed to his oath of office filed in the Richmond County Clerk’s Office.

Nevertheless, such a defect in form is not fatal and may be rehabilitated within the discretion of the court. It has been held that where the notarial signature was omitted from a document it is considered a technical defect, where the defect is not jurisdictional in nature and where there is no undue nor substantial prejudice to a substantial right, then said defect may be disregarded or curable by subsequent affidavit: “Contrary to the defendants’ contention, the Supreme Court properly considered the expert affidavit submitted by the plaintiffs on that issue, since the notary’s failure to sign the jurat was a technical defect which could be disregarded in the absence of substantial prejudice to the defendants” (see CPLR 2001; Carter v Grenadier Realty, 83 AD3d 640, 642 [2d Dept 2011]) citing Baluchinsky v General Motors Corp., 248 AD2d 574, 575, 670 NYS2d 536 [1998]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700, 468 NYS2d 125 [1983]). “[T]he court disregarded Ms. Kim’s affidavit because of two technical defects: (1) the notary’s signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized” (Seoulbank, NY Agency v D&J Export & Import Corp., 270 AD2d 193, 194 [1st Dept 2000]) citing Baluchinsky v GMC, 248 AD2d 574, 575 [2d Dept 1998]; Supreme Auto. Mfg. Corp. v Cont. Cas. Co., 97 AD2d 700 [1st Dept 1983]; see also, Pasqualini v Tedesco, 248 AD2d 604 [2d Dept 1998]; Lane Crawford Jewelry Ctr. v Han, 222 AD2d 214 [1st Dept 1995]). “Given the lack of prejudice to a substantial right of the defendant, the Supreme Court should have disregarded the defect in the affidavit of the plaintiff’s expert and should have considered the affidavit in opposition to the defendant’s motion (see, CPLR 2001; Baluchinsky at 575, citing Supreme Automotive; see also, [*6]Lauer v Rapp, 190 AD2d 778 [2d Dept 1993]). “[T]he single defect in the search warrant application is that the jurat was not signed. The jurat is, however, ‘simply evidence of the fact that the oath was properly taken before a duly authorized officer. It is no part of the oath’, and its absence is a defect curable by subsequent affidavits or testimony” (People v Zimmer, 112 AD2d 500, 501 [3d Dept 1985], citing People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 261 AD 550 [1st Dept 1941]; see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). “We reject plaintiff’s contention that Supreme Court erred in permitting defendant owners to correct, in reply, the defects in Kellam’s original affidavit neither signed nor notarized; however, defendant owners submitted a signed and notarized affidavit from Kellam in reply” (KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 66-67 [1st Dept 2024]). “The notary’s failure to sign the investigator’s affidavit is the type of defect which a court may permit to be corrected upon such terms as are just or, if a substantial right of a party is not prejudiced, disregard” (CPLR 2001; Supreme Automotive at 700 citing People ex rel. Fifth Ave. & 37th St. Corp. at 553-554). Herein, Defendant duly availed itself of the opportunity to full and fair exhaustive challenge to the Kuperman Affidavit in its Reply yet failed to object as to its inadmissibility in its form of notarization and therefore it cannot be found that Defendant is unduly prejudiced by its consideration. Moreover, it is found that Defendant has not been deprived of a substantial right and therefore further not prejudiced, such that this defect in the notarial signature is held as disregarded. Further, Defendant waived its right to object to the defect in form pursuant to CPLR § 2001. The Kuperman Affidavit is hereby ruled admissible and is being considered. Defendants have satisfied its burden for judgment as a matter of law. However, upon the shifting of the burden, Plaintiff has satisfied its burden in rebuttal establishing a scintilla of a triable issue of fact as to the Outstanding Verification Requests.

For the foregoing reasons, the answer to the Question as to what is a signature? A signature is whatever the signatory says it is. However, a notarial signature must be consistent with the signature affixed upon the oath of office filed with the licensing county clerk’s office.

Defendant’s Motion for Summary Judgment is Granted to the extent that Defendant has been found to have timely issued its Denials and the triable issue of fact is the Outstanding Verification Requests.

This Constitutes the Decision and Order of This Honorable Court.

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Katryna L. Kristoferson of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v GEICO,76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent plaintiff contends that an issue existed with respect to counsel’s recollection of plaintiff’s failure to appear, such a contention is without [*2]merit, as, on its face, counsel’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

OTTLEY, J., taking no part.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. McCormack, Mattei & Holler, P.C. (Jamila Shukry of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, Jr., J.), dated May 16, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, Jr., J.) dated May 16, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had materially misrepresented where the vehicle was garaged. As this defense is subject to preclusion (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), defendant was required to establish that it had timely denied the claims on that ground, but it failed to do so (see JFL Med. Care, P.C., 2022 NY Slip Op 51376[U]; Empire State Med. Supplies, Inc., 2017 NY Slip Op 50403[U]; Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is denied.

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

OTTLEY, J., taking no part.

Upon the foregoing cited papers and after oral argument, Plaintiff’s Motion to Dismiss Affirmative Defenses and Advanced Motion to Compel Discovery; and Defendant’s Cross-Motion for Summary Judgment are Decided hereby as follows:

Defendant’s Cross-Motion for Summary Judgment is GRANTED; and Plaintiff’s Motions to Dismiss Affirmative Defenses and to Compel Discovery are DENIED as moot.

This Court finds that Defendant demonstrated Plaintiff failed to comply with the timely verification requests issued pursuant to 11 NYCRR §65-3.5(o) within 120 days, and that Plaintiff failed to demonstrate that it provided the requested verification or set forth a reasonable justification for its failure to comply with Defendant’s verification requests, as required pursuant to 11 NYCRR §65-3.5(o). Defendant submitted admissible evidence that it had not received the requested documentary verification. In Plaintiff’s first affirmation in opposition submitted, Doc. 10 on NYSCEF, the affidavit of Plaintiff’s owner merely states he mailed the requested verification on 5/16/19 to the address designated by the Defendant on the verification requests “to the extent such response was proper and, in [his] possession,” and without any corroborating documentary proof of compliance with the verification requests. Rendering, the affidavit insufficient to meet its burden (see NYSCEF Doc. 20 paragraph 6). This language has been found by Appellate Term 2nd Department to be “insufficient to raise a triable issue of fact.” In paragraph 8 of that same affidavit, Plaintiff attests that he “responded to and mailed all requested documentation that was “proper and which Plaintiff had access to” (see Doc. 20 paragraph 8). Furthering the insufficiency of this affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]).

In Plaintiff’s Amended Opposition filed fifteen (15) months after Defendant served its Reply [*2]affirmation, Doc. 27 on NYSCEF, the amended affidavit of Plaintiff’s owner merely states that he mailed the requested verification responses on 5/16/19 to the address designated by Defendant on its verification requests. Yet, in paragraph 8 of that same affidavit, Plaintiff’s affiant still qualifies his response in attesting that he “responded to and mailed all requested documentation that was ‘proper and which Plaintiff had access to'”, and yet still without corroborating documentary proof of compliance with the verification requests. Once again, rendering the amended affidavit insufficient to meet its burden (see Doc. 27 paragraph 8). And yet again, furthering the insufficiency of this amended affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore again, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 77 Misc 3d 129 [A] [App. Term 2nd Dept. December 9, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2023 NY Slip Op. 50794 [U] [App. Term 2nd Dept. July 21, 2023]).

Plaintiff submits 197 pages of correspondences from Plaintiff to Defendant objecting to the verification requests stating that State Farm was not entitled to the information requested and unilaterally determined the verification requests to be a nullity (see Doc. 37 of Plaintiff’s Amended Opposition). This issue was specifically addressed in a recent Appellate Term 2nd decision dated February 14, 2025. In Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195(U) (App. Term 2nd Dept.), The Court held, “Contrary to plaintiff’s further contention, it was not improper for defendant to seek, during the claim verification stage, information – such as management agreements, W-2 forms, business-related bank records and lease agreements — for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16[2] [12]; State Farm Mut. Aut. Ins. Co. v. Mallela, 4NY3d 313, 827 NE2d 758, 794 NYS 2d 700 [2005]).” Moreover, the Court further held, “[a]s plaintiff objected to the verification requests claiming they were nullities, the record establishes that plaintiff did not “provide within 120 calendar days from the date of the initial request either all such verification under [plaintiff’s] control or possession or written proof providing reasonable justification for the failure to comply’ (11 NYCRR 65-3.5 [o]). Consequently, the arguments raised on appeal lack merit” (id. at [*3] [*4], 2025 NY Slip Op 50195 [U] [App. Term 2nd]).

Further, This Court rejects Plaintiff’s alternative argument that the voluminous correspondences of objections rendering Defendant’s verification requests as nullities, nevertheless sets forth a reasonable justification for its failure to respond thereby establishing a triable issue of fact (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195 [U] [App Term 2nd Feb. 14, 2025]; City Care Acupuncture, P.C. & Jamaica Wellness Med., P.C., a/a/o Sergheiciuc v. Allstate Prop. & Cas. Ins. Co., No. 2015-1846 Q C, 2017 WL 6543604, at *[1] [App. Term, 2d, 11th, & 13th Jud. Dists. 2017]; Remedy Chiropractic, P.C. v Nationwide Ins. 2022 NY Slip Op 50935 [U] [App. Term 2nd Dept September 23, 2022]). Defendant has met its burden for summary judgment as a matter of law. Plaintiff fails to establish a scintilla of a triable issue of fact in rebuttal upon the shifting of the burden.JL.

Therefore, Plaintiff’s Complaint is hereby DISMISSED with PREJUDICE.

This Constitutes the Decision and Order of The Court.

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 (David M. Hawkins, J.), entered March 12, 2024. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $2,705 pursuant to a stipulation of settlement entered into on December 14, 2001, failed to award prejudgment statutory compounded no-fault interest. The appeal from the judgment brings up for review so much of an order of the same court dated March 27, 2018 as denied plaintiff’s motion to recalculate interest using a compound, not simple, rate and, sua sponte, tolled the accrual of prejudgment statutory no-fault interest.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the March 27, 2018 order as denied plaintiff’s motion to recalculate interest using a compound, not simple, rate and, sua sponte, tolled the accrual of prejudgment statutory no-fault interest is vacated, plaintiff’s motion is granted, 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 settled in open court on December 14, 2001. Defendant did not pay the settlement amount, and a judgment was subsequently entered on February 10, 2017, pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On February 17, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the February 10, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. In opposition, defendant, relying on 11 NYCRR 65-3.9 (d), argued that plaintiff’s “unexplained delay of over fifteen years in entering a judgment and in otherwise prosecuting the action” should preclude any award of interest, simple or compound.

In an order entered March 27, 2018, the Civil Court (David M. Hawkins, J.) denied plaintiff’s motion and, sua sponte, vacated the February 10, 2017 judgment. The court noted that plaintiff “may, if he chooses, move to enter a judgment based upon the ‘settlement’ of the [*2]underlying action in the amount of $2,705.00, with no prejudgment” statutory no-fault interest. The court further noted that plaintiff would then “be entitled to post-judgment interest measured from the date of entry at the rate of ‘nine percent per annum.’ ” The court reasoned that the action was settled on December 14, 2001, with plaintiff agreeing to accept the principal sum of $2,705 and that plaintiff’s delay of about 15 years before entering judgment was an undue delay in prosecuting the action and, thus, plaintiff was not entitled to recover 15 years of accrued interest. The court noted that defendant had not cross-moved to vacate the February 10, 2017 judgment, but that it took into consideration defendant’s argument that, pursuant to 11 NYCRR 65-3.9 (d), plaintiff was not entitled to any interest as part of the judgment. The court further stated that, since plaintiff did not indicate whether the December 14, 2001 settlement was “made in open court, reduced to writing, or so-ordered by the Court, nor has he provided a written stipulation or a transcript of the settlement,” there is no indication that the settlement met the requirements of CPLR 2104 and, thus, the settlement was “not binding or enforceable upon the Defendant until a judgment was entered on February 10, 2017.” A judgment was entered on March 12, 2024 awarding plaintiff the total sum of $2,705.

Plaintiff correctly argues that the Civil Court erred in tolling the prejudgment statutory no-fault interest. 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]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). While the court noted that plaintiff had not submitted proof that it complied with the provisions of CPLR 2104, the judgment states that it was entered “per stipulation of the parties,” defendant did not move to vacate the judgment as having been improperly entered pursuant to the stipulation, nor has defendant appealed from the judgment, and defendant does not deny that the parties agreed to settle the case. In the absence of evidence to the contrary, this court presumes that the judgment was properly entered pursuant to a properly executed settlement (see CPLR 2104, 5003-a; see also Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]). Moreover, defendant did not demonstrate that plaintiff had prevented defendant 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 statutory no-fault interest until entry of the judgment (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]). In addition, claims submitted before April 5, 2002, such as the one herein, are governed by former 11 NYCRR 65.15 (h), which provides for compound interest (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [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]). Consequently, statutory no-fault interest of 2% per month should be calculated at a compounded rate.

We note that, while the court’s March 27, 2018 order states that plaintiff would be entitled to postjudgment interest at the rate of nine percent per annum (see CPLR 5004), that is not the correct rate of interest because “Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which were specific directives, supersede the interest provisions contained in CPLR 5004, the more general statute” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d at 156).

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the March 27, 2018 order as denied plaintiff’s motion and, sua sponte, tolled the accrual of prejudgment statutory no-fault interest is vacated, plaintiff’s motion is granted, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

BUGGS, J.P. and QUIÑONES, J., concur.

OTTLEY, J. taking no part.