Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg and Smauel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2016. The order granted the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate a judgment of that court entered October 31, 2014 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the judgment entered October 31, 2014, and to compel plaintiff to accept defendant’s answer are denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service indicates that defendant was served on September 16, 2014 by delivery of the summons and complaint to Grace Annunziata at defendant’s Brooklyn office. The affidavit described Annunziata and stated that she was known to the process server to be defendant’s employee, who was authorized to accept delivery at that Brooklyn address. Defendant failed to appear or answer, and, upon plaintiff’s motion, a default judgment in the amount of $4,057.51 was entered against defendant on October 31, 2014. In October 2015, defendant moved, in effect pursuant to CPLR 5015 (a) (1) and (4), to, among other things, vacate the default judgment and [*2]compel plaintiff to accept defendant’s answer, which was annexed to the motion papers. Defendant’s claim representative asserted in an affidavit in support of the motion that the summons had not been “served on Allstate as alleged.” Defendant’s motion also sought the alternative relief of modification of the judgment on the ground that the interest was not correctly calculated. Plaintiff opposed the motion. By order entered August 9, 2016, the Civil Court granted the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer, finding that defendant had established a reasonable excuse for the default and a potentially meritorious defense to the action.

A defendant seeking to vacate a default in appearing or answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Here, the summons and complaint were served by a process server, who provided a description of Grace Annunziata, the recipient of service, and attested that Annunziata was known to him to be defendant’s employee who was authorized to accept service at defendant’s address. “A process server’s affidavit of service constitutes prima facie evidence of proper service on a corporation pursuant to CPLR 311 (a) (1)” (Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673, 673 [2015] [internal citations omitted]).

Although a defendant’s sworn denial of receipt of service may rebut the presumption of proper service established by the process server’s affidavit, defendant did not submit an affidavit from Annunziata denying either that she had been authorized to accept service or that she had accepted service of the summons and complaint (see Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Rather, defendant proffered an affidavit by its claim representative, who admitted that defendant maintained a claims office at the same Brooklyn address which is listed in the affidavit of service. Defendant’s claim representative’s assertion that the summons was not “served on Allstate as alleged” lacked sufficient detail to rebut the prima facie proof of proper service set forth in the affidavit of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]) and did not demonstrate a reasonable excuse for defendant’s default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]). We note that defendant also failed to adequately explain its 11-month delay in seeking to vacate its default (see Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825 [2013]).

As the Civil Court did not determine the remaining branches of defendant’s motion seeking, in the alternative, to, among other things, modify the judgment, the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Accordingly, the order is reversed, the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the judgment entered October 31, 2014, and to compel plaintiff to accept defendant’s answer are denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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

714648/16

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040

For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490

Plaintiff’s motion and defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title Number

Plaintiff’s Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1

Defendant’s Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2

Plaintiff’s Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff’s [*2]purported failure to appear for four Examinations Under Oath (“EUO”) or alternatively, based upon defendant’s founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.

Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff’s assignor’s purported non-appearances.

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).

Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of “the fact or [a] founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). “[A]n insurer’s evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party’s conduct ‘may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'” (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff’d, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).

Upon review of defendant’s EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.

Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 ^[FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant’s founded belief is based upon the inconsistent testimonies between the parties.

Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant’s proofs are insufficient to raise a triable issue of fact.

Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff’s employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).

Therefore, based upon the foregoing, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys’ fees and costs.

This constitutes the Decision and Order of the court.

Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.

Footnotes

Footnote 1:Defendant demonstrated its compliance with CPLR 3116 through the affidavits of service of Darryl Pierre, an employee of Abrams, Cohen & Associates, who was retained by defendant to schedule and conduct Examinations Under Oath.

Decided on December 20, 2018

Glinkenhouse, Floumanhaft & Queen (Alan Queen of counsel), for appellant-respondent. Peter C. Merani, P.C. (Eric M. Wahrburg and Edward Tobin of counsel), for respondent-appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 8, 2017. The order, insofar as appealed from by plaintiff, granted the branch of defendant’s motion seeking to toll the accrual of all postjudgment interest to the extent of tolling the interest from May 14, 2004 through February 8, 2008. The order, insofar as cross-appealed from by defendant, denied the branch of defendant’s motion seeking to direct the clerk to enter a satisfaction of judgment and granted the branch of its motion seeking to toll the accrual of all postjudgment interest only to the extent of tolling the accrual of interest from May 14, 2004 through February 8, 2008.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to toll the accrual of all postjudgment interest is denied and by vacating so much thereof as denied the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment in accordance with this decision and order.

Following a nonjury trial in 2000 of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded a judgment to plaintiff in the principal sum of $4,387, together with statutory interest, costs and fees. A judgment in the sum of $9,512.69 was entered on May 14, 2004 and was served with notice of entry upon defense counsel on June 8, 2008. Defendant acknowledged the receipt of a marshal’s notice of levy and sale on September 2, 2016. The notice advised defendant that defendant owed plaintiff the amount of the judgment, [*2]together with $376,324.80 in postjudgment interest. It is undisputed that, in October 2016, defendant issued a check to the marshal in the amount of $9,988.32. Several months later, defendant moved for, among other things, an order directing the clerk to enter a satisfaction of judgment; “modify[ing]” the judgment; and staying the accrual of postjudgment interest on the grounds that defendant had paid the “face value of the judgment” and that plaintiff is not entitled to postjudgment interest because plaintiff’s unreasonable delay had caused the interest to accrue. Plaintiff opposed the motion, arguing that interest accrues until a claim is paid. By order entered March 8, 2017, the Civil Court granted defendant’s motion to the extent of staying the accrual of interest from May 14, 2004, the date that the judgment was entered, through February 8, 2008, the date that plaintiff served a copy of the judgment with notice of entry. This appeal and cross appeal ensued.

A money judgment bears interest from the date of its entry (see CPLR 5003), and, generally, the interest accrues until the judgment is paid (see Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496 [2005]; Martin v Tafflock, 166 AD2d 635 [1990]). “Postjudgment interest is awarded as a penalty for the delayed payment of a judgment” (ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; see B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Contrary to defendant’s assertion, there is no evidence of actions or conduct by plaintiff which prevented defendant from paying the judgment (see Bankers Trust Co. of Cal., N.A. v Brunson, 40 AD3d 672, 672 [2007]; ERHAL Holding Corp., 252 AD2d at 474; cf. Danielowich v PBL Dev., 292 AD2d 414 [2002]). Consequently, the Civil Court erred in tolling the accrual of postjudgment interest for the period in question.

We remit the matter to the Civil Court for a new determination of the branch of defendant’s motion seeking to direct the entry of a satisfaction of judgment. The amount of a partial satisfaction, if any, should be calculated by determining the total payments received as of a certain date, and deducting from that sum the marshal’s fee, the interest accrued to that date, and the poundage fee due to the marshal upon the collection of such sum (see Ifudu v Ross, 60 Misc 3d 140[A], 2018 NY Slip Op 51199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In this regard, we note that plaintiff is entitled to receive only simple interest at the statutory rate of nine percent per year from the date of the entry of the judgment through the date of the payment of the judgment (see CPLR 5004; B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]), and that the marshal’s notice of levy and sale served upon defendant inexplicably stated interest in the amount of $376,324.80. We further note that defendant demonstrated, by showing the submission to a New York City marshal of a check which the marshal endorsed, that defendant had paid the amount of $9,988.32 (see CPLR 5021 [a]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to toll the accrual of all postjudgment interest is denied and by vacating so much thereof as denied the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment. The matter is remitted to the Civil Court for a new determination of the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

Decided on December 7, 2018

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

Decided on December 7, 2018

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Pinczewski and Shpelfogel, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 6, 2017. The order denied defendant’s motion, pursuant to CPLR 4404 (b), to set aside a decision of the Civil Court made after a nonjury trial.

ORDERED that the order is reversed, without costs, defendant’s motion, pursuant to CPLR 4404 (b), to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issues for trial would be whether the services that had been rendered were medically necessary and whether plaintiff had properly billed in accordance with the workers’ compensation fee schedule, as all elements of plaintiff’s case had been established and defendant had timely denied the claim. At a nonjury trial, plaintiff’s attorney moved to preclude defendant’s expert witnesses on the grounds that disclosure of those witnesses was untimely and that disclosure had been made by facsimile transmission, a method of notice which plaintiff’s counsel had previously rejected. Defense counsel argued that there would be no prejudice to plaintiff as a result of the testimony, and counsel advised the court that his witnesses were present to testify. On February 9, 2016, the Civil Court granted plaintiff’s motion to preclude the witnesses, stating that it did not think that prejudice was an issue but “we have to move these cases timely.” On February 24, 2016, defendant timely moved, pursuant to CPLR 4404 (b), to set aside the decision, and plaintiff opposed the motion. By order entered January 6, 2017, the Civil Court denied defendant’s motion.

“CPLR 3101 (d) (1) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of [*2]intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999] [internal quotation marks omitted]; see Burbige v Siben & Ferber, 115 AD3d 632, 633 [2014]). While defendant’s service of the expert witness notices at issue should have been more prompt (see Cutsogeorge, 264 AD2d at 754) and made by mail as requested by plaintiff, the Civil Court erred in precluding defendant’s expert witnesses, as the record clearly demonstrates that there was no showing by plaintiff that defendant had intentionally or willfully failed to promptly disclose, or that plaintiff had been prejudiced.

Accordingly, the order is reversed, defendant’s motion to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers’ compensation fee schedule.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered January 31, 2017. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on November 10, 2009. Defendant interposed an answer on December 8, 2009. On August 5, 2016, defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on August 8, 2016. By notice of motion dated December 21, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint, and plaintiff did not oppose the motion. On January 13, 2017, 158 days after it had received defendant’s demand, plaintiff filed a notice of trial. Defendant appeals from so much of an order of the Civil Court as denied its motion to dismiss.

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]) or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff filed a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d [*2]653; A.M. Med., P.C., 22 Misc 3d 43). However, plaintiff failed to oppose defendant’s motion. Consequently, it failed to demonstrate any ground to deny defendant’s motion (see Wilson v Nembhardt, 180 AD2d 731, 734 [1992] [“it was an improvident exercise of discretion for the court to excuse the plaintiff’s attorney’s failure to oppose the appellant’s motion to dismiss, a failure rendered all the more inexcusable in that it occurred while the plaintiff’s attorney was already in default in properly complying with the outstanding 90-day notice”]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered January 31, 2017. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 9, 2007. Defendant interposed an answer on February 9, 2007. On September 1, 2016, defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on September 12, 2016. On December 15, 2016, 94 days after it had received defendant’s demand, plaintiff filed a notice of trial. By notice of motion dated December 20, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint, and plaintiff did not oppose the motion. Defendant appeals from so much of an order of the Civil Court as denied its motion to dismiss.

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]) or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). We note that CPLR 3216 (b) (3) and (c) require some form of action within 90 days of the receipt of the demand, as opposed to the service of the demand, and, thus, the five-added-days-for-mailing provision of CPLR 2103 (b) (2) does not apply here. As plaintiff filed a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, it was required, [*2]in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). However, plaintiff failed to oppose defendant’s motion. Consequently, it failed to demonstrate any ground to deny defendant’s motion (see Wilson v Nembhardt, 180 AD2d 731, 734 [1992] [“it was an improvident exercise of discretion for the court to excuse the plaintiff’s attorney’s failure to oppose the appellant’s motion to dismiss, a failure rendered all the more inexcusable in that it occurred while the plaintiff’s attorney was already in default in properly complying with the outstanding 90-day notice”]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Marisa Villafana of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered January 21, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to the determination of the Civil Court, defendant failed to establish with admissible evidence that Florida law applies to the case at bar and, thus, that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies here, defendant relied upon an annexed payment log to demonstrate that policy limits in the amount of $10,000 had been exhausted; however, the affidavits submitted by defendant failed to establish that the payment log constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]). Consequently, as defendant failed to support its defense that it had paid the full monetary limits of the policy at issue, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely [*2]denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.