The Rybak Firm, PLLC (Oleg Rybak 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 (D. Bernadette Neckles, J.), dated June 26, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (D. Bernadette Neckles, J.) dated June 26, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses. Plaintiff argues on appeal that the order should be reversed, defendant’s motion should be denied, and either the matter should be remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, or in the alternative, plaintiff’s separate motion to dismiss defendant’s affirmative defenses should be granted.

Contrary to plaintiff’s contention on appeal, defendant’s verification requests, which [*2]sought information such as plaintiff’s management agreements, W-2 forms, business-related bank records, and lease agreements, to determine whether plaintiff was ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to a failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) were not improper (see Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2025 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

As plaintiff’s appellate brief notes, the order appealed from “made no mention of [plaintiff’s] Amended Cross-Motion.” Consequently, we do not reach any issue with respect to plaintiff’s amended cross-motion for summary judgment, as it was not addressed in the order appealed from (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). However, we note that, contrary to the contention in plaintiff’s appellate brief, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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

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

Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).

In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).

Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.

Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.

As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.

Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.

Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.

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

Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).

In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).

Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.

Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.

As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.

Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.

Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.

The Decision//Order on the Defendant’s Motion to reargue the motion for summary Judgment is as follows:

The plaintiff, MEDICAL SUPPLY OF NY SERVICES, INC. (the “Plaintiff”), as assignee of FELIX JUMA DIAZ (the “Assignor”) commenced this action against STATE FARM MUTUAL AUTO INS. CO. (the “Defendant”) to recover assigned first-party No-Fault benefits for medical treatment provided to the Assignor on May 17, 2023. The Defendant moved for summary judgment based upon Assignor’s failure to attend two duly scheduled Examinations Under Oath (“EUOs”) on September 8, 2023. On March 27, 2024, this Court denied the Defendant’s motion, finding there was an issue of fact regarding the Assignor’s failure to attend the EUOs. The Notice of Entry for the decision and order was filed April 2, 2024.

The Defendant filed the instant motion on May 2, 2024, for leave to reargue the motion for summary judgment on the basis that the Court overlooked or misapprehended matters of fact or law in its prior decision. Plaintiff filed opposition on October 21, 2024. Arguments were heard on December 19, 2024, and decision was reserved.

This Court held in the March 27, 2024 decision that the Defendant did not meet its burden of proof to establish that the Assignor failed to appear for the two scheduled EUOs. This Court held that the Defendant did not submit an affidavit or affirmation from an attorney present to conduct the EUO, only transcripts of the EUO.

Here, Defendant alleges that this Court misapprehended facts or law when issuing the Order dated March 27, 2024, because the Court overlooked the affidavit of Richard Aitken, Esq. In his affidavit, Mr. Aitken states that “[o]n December 7, 2022, FELIX JUMA DIAZ failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP placed a default statement on the record.”

A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include [*2]any matters of fact not offered on the prior motion. CPLR §2221.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (Midfirst Bank v. Agho, 121 AD3d 343, (Sup. Ct., App Div., 2nd Dept., August 13, 2014), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) “The submitted evidence in support of summary judgment must be in a form admissible at trial.” (Midfirst Bank v. Agho, 121 AD3d 343, [2014]) emphasis added.

An affidavit/affirmation from an attorney attesting the nonappearance of a plaintiff at an examination under oath (EUO) is of no probative value if it lacks personal knowledge of the plaintiff’s nonappearance. (Alrof, Inc. v. Safeco Nat. Ins. Co., 39 Misc 3d 130[A] [App. Term 2013].) In Alrof, the Court opined the affidavit submitted by defense counsel was of no probative value because his “personal knowledge” came from a review of the file. An affirmation submitted by an attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, is sufficient to establish that plaintiff had failed to appear. (Nat. Therapy Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 986 N.Y.S.2d 866 [App. Term 2014].)

The Court in New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., (45 Misc 3d 758 [NY County, 2014]) superbly explained the Appellate Term’s rulings in Alrof and its progeny. The elements of the proper attorney affidavit include a statement of personal knowledge that the attorney was present in the office to conduct the EUO of the witnesses on the schedule dates; that no one affiliated with the witness appeared for the EUO on those dates; that had the witness appeared for the scheduled EUO the affirmant, or an attorney the affirmant assigned that day, would have conducted the EUO of the witness. New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., 45 Misc 3d 758, 760-762.

In this matter, the affidavit of Richard C. Aitken Esq., the Defendant’s attorney, does not state that he was present at the time the EUO was scheduled to take place. Paragraph’s 4 and 6 of the affirmation state:

“On (relevant date) Felix Juma Diaz failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP, placed a default statement on the record. A certified copy of the default statement is annexed hereto as Exhibit G”.

The affidavit only states that the attorney placed a default statement on the record. Such a statement could have been made virtually, and therefore the deponent may not personally observe whether the witness attended. The act of placing the statement on the record does not mean the deponent was present at the scheduled time and location for the EUO. Without stating the attorney was present to observe the non-appearance, the declaration that the witness failed to appear is nothing more than a hearsay conclusory statement. The defense attorney’s statement did not meet the criteria described in New Capital Supply, Inc., et. al. above.

Furthermore, the transcript of EUO statement itself is not admissible evidence to be considered for a summary judgment motion. Charles Deng Acupuncture P.C. v. Titan Insurance Co., 74 Misc 3d 137(A) (Sup. Ct., App. Term, 2,11,13 Jud. Dist., April 1, 2022). While a deposition may be introduced as evidence provided the provisions of CPLR §3116 & §3117, the deponent did not submit a foundation for consideration of the transcript. Without such a [*3]foundation the document is hearsay, and therefore not admissible evidence to be considered regarding the summary judgment motion. Therefore, the Court cannot rely on the statements made within the default statement transcript as evidence or proof that the attorney was present in the office at the time the EUO was scheduled to take place.

For these reasons, the Court finds that the affidavit of Mr. Aitken was not overlooked when determining the prior motion because, as stated in the decision, the attorney affidavit did not establish the attorney was present at the time scheduled for the EUO.

Accordingly, Defendant’s motion to reargue is DENIED. The Court’s decision dated March 27, 2024 denying the Defendant’s motion for summary judgment stands.

This is the Decision and Order of the Court.

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Martyn, Smith, Murray & Yong, Esqs. (Thomas M. Martyn and Danny Miller of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated April 12, 2024. The order granted the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate a judgment of that court (Alan J. Schiff, J.) entered June 2, 2023 upon defendant’s failure to oppose plaintiff’s motion to enter judgment pursuant to CPLR 5003-a.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate the judgment entered June 2, 2023 is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

Plaintiff commenced this action in 1995 to recover assigned first-party no-fault benefits. In December 1997, the parties agreed to settle the matter for $885.54, and plaintiff tendered a general release, executed by himself and counsel, and a stipulation of discontinuance to defendant’s counsel. It is uncontroverted that, on March 9, 1998, the stipulation of [*2]discontinuance was filed by defendant’s counsel ^[FN1] in the Queens County Civil Court clerk’s office without paying plaintiff the sum due him, which sum remains unpaid.

In June 2017, after plaintiff applied to the clerk for the entry of a judgment, in effect pursuant to CPLR 5003-a (e), the clerk rejected the application because, in relevant part, the signed stipulation of discontinuance had been filed. Plaintiff challenged this rejection in a CPLR article 78 proceeding to compel the clerk to enter judgment and, by order entered August 20, 2020, the Supreme Court, Queens County (Pam Jackman Brown, J.), dismissed the article 78 proceeding as time-barred. In April 2021, plaintiff moved in the Civil Court for leave to enter a judgment with interest pursuant to CPLR 5003-a, which motion was granted (Alan J. Schiff, J.) on default. A judgment in the amount of $376,022.05 was entered against defendant on June 2, 2023.

In October 2023, defendant moved, among other things, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the default judgment. In an order dated April 12, 2024, the Civil Court (Ira R. Greenberg, J.) granted the branch of defendant’s motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4), holding that because the stipulation of discontinuance had been filed by defendant on March 9, 1998, the action was terminated and the court was without jurisdiction to consider plaintiff’s CPLR 5003-a motion.

At the outset, we note that, “[w]hen a defendant moves to vacate a default judgment pursuant to CPLR 5015 (a) (4) and (a) (1), the court is required to resolve the CPLR 5015 (a) (4) jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur pursuant to CPLR 5015 (a) (1)” (see LVNV Funding, LLC v Alvarado, 83 Misc 3d 136[A], 2024 NY Slip Op 51203[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

“The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions” (Pitt v New York City Hous. Auth., 106 AD3d 797, 797-798 [2013]). CPLR 5003-a requires a settling defendant to “pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff” (CPLR 5003-a [a]; see Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co., 77 Misc 3d 130[A], 2022 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). “If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of [a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff], the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements” (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 545 [2010]; see CPLR 5003-a [e]). The tender [*3]of a stipulation of discontinuance by a settling plaintiff to a settling defendant is a condition precedent to a plaintiff’s CPLR 5003-a (e) relief when a defendant fails to make prompt payment. Under the circumstances presented, the filing of the stipulation of discontinuance by defendant without it ever paying the sum due to plaintiff did not deprive the court of jurisdiction to entertain plaintiff’s motion for leave to enter a judgment pursuant to CPLR 5003-a (e) (see e.g. Levine v American Multi-Cinema, Inc., 208 AD3d 1230 [2022]; Ishikawa v 3010 Whaleneck Realty Corp., 2023 NY Misc LEXIS 29966 [Sup Ct, Nassau County 2023]; Trinidad v McIntyre, 2021 NY Misc LEXIS 24023 [Sup Ct, Queens County 2021]; Sequinot v Lawrence, 2020 NY Misc LEXIS 49757 [Sup Ct, Westchester County 2020]).

As the Civil Court did not determine the remaining branches of defendant’s motion, including the branch seeking, in effect pursuant to CPLR 5015 (a) (1), to vacate the default judgment, the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Accordingly, the order is the order is reversed, the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate the judgment entered June 2, 2023 is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: February 14, 2025

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 (Sandra E. Roper, J.), dated February 16, 2023. 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, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) dated February 16, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court rejected that submission, which also included amended opposition to defendant’s motion, as “procedurally improper”, citing CPLR 2214. In the alternative, plaintiff argues that defendant’s motion should be denied.

Contrary to plaintiff’s contention on appeal, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, [*2]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 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke 2 Physical Therapy, P.C., as Assignee of Lewis, Destiny v State Farm Mut. Auto. Ins. Co., — Misc 3d &mdash, 2025 NY Slip Op — [appeal No. 2023-961 K C], decided herewith).

“[C]ontrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is affirmed.

The decision and order of this court dated June 14, 2024 (2024 NY Slip Op 50803[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

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

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 (Sandra E. Roper, J.), dated August 23, 2023. 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, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) dated August 23, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court treated that submission, which also included amended opposition to defendant’s motion, as an unauthorized sur-reply. In the alternative, plaintiff argues that defendant’s motion should be denied.

The record demonstrates that, after serving its cross-moving papers seeking summary judgment and opposing defendant’s motion, plaintiff served an amended cross-motion and [*2]amended opposition to defendant’s motion. Defendant subsequently served papers in further support of its motion for summary judgment and in opposition to both plaintiff’s cross-moving and amended cross-moving papers. As plaintiff’s amended papers were served almost six months before defendant’s reply papers were served, which reply papers addressed the merits of plaintiff’s amended papers, plaintiff’s amended papers were not unauthorized sur-reply papers (see CPLR 2214 [c]). Nevertheless, reversal is not warranted. Neither plaintiff’s initial cross-motion and opposing papers nor its amended papers were sufficient, individually or collectively, to demonstrate the existence of a triable issue of fact, since, “contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

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. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Indeed, if, as plaintiff contends, insurance companies should only be able to obtain such information using discovery demands after litigation has ensued, insurance companies would be confronted with a dilemma—to pay the claims for which the plaintiff may not be eligible to receive reimbursement and then commence a suit to recoup such payment (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322), or refrain from paying and wait until after plaintiff commences litigation to investigate via discovery whether plaintiff is eligible for reimbursement, which risks the insurance company being held liable for years of interest that would have accrued upon the claims in the interim at the rate of two percent per month (see 11 NYCRR 65-3.9 [a]), plus attorney’s fees (see 11 NYCRR 65-4.6). As 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 by plaintiff lack merit.

Accordingly, the order is affirmed.

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

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 (Heela D. Capell, J.), dated July 13, 2023. 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, plaintiff appeals from an order of the Civil Court (Heela D. Capell, J.) dated July 13, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court rejected that submission, which also included amended opposition to defendant’s motion, as “procedurally improper,” citing CPLR 2214. In the alternative, plaintiff argues that defendant’s motion should be denied.

Contrary to plaintiff’s contention on appeal, the affidavit by plaintiff’s owner in opposition to defendant’s cross motion for summary judgment, in which he stated “that he had mailed the [*2]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., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U], * 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], quoting Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see 11 NYCRR 65-3.5 [o]). Moreover, 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 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke 2 Physical Therapy, P.C., as Assignee of Lewis, Destiny v State Farm Mut. Auto. Ins. Co., — Misc 3d &mdash, 2025 NY Slip Op — [appeal No. 2023-961 K C], decided herewith).

“[C]ontrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Michael J. Giordano of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to open its default in answering and to compel plaintiff to accept defendant’s late 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 services rendered to its assignor as a result of a motor vehicle accident which occurred on August 26, 2017. The summons and complaint were served upon defendant on or about December 22, 2020. Defendant did not serve an answer. Plaintiff applied for a default judgment and mailed defendant a copy of the default judgment application on October 28, 2021.

On November 17, 2021, defendant moved, pursuant to CPLR 3012 (d) and/or 2001, to open its default and to compel plaintiff to accept its late answer on the ground that 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 affidavit of an employee who worked at [*2]defendant’s attorney’s office who was responsible for serving the answer. She averred that, although the answer had been timely prepared, she had inadvertently failed to serve it. Defendant’s attorney argued that forgetting to serve the answer amounted to law office failure and should be excused by the Civil Court, especially considering that there was no evidence that this was willful or part of a pattern of neglect by defendant, or that plaintiff had been prejudiced by the default. As a meritorious defense, defendant asserted that the subject action was barred by res judicata or collateral estoppel. Defendant submitted a Supreme Court, Nassau County, declaratory judgment which declared that the August 26, 2017 motor vehicle accident involving plaintiff’s assignor was an intentional act and, therefore, there was no duty on defendant’s part to provide coverage for any claims arising therefrom.

Plaintiff cross-moved for summary judgment and, in opposition to defendant’s motion, argued that the affidavit of the law office employee was vague as to the details leading to the oversight in serving an answer and mere neglect was not a reasonable excuse. Moreover, the declaratory judgment did not have res judicata or collateral estoppel effect since it did not involve the same parties or causes of action as the subject action and was not fully litigated, as it was obtained on default.

By order dated January 12, 2024, the Civil Court (Sandra E. Roper, J.) granted defendant’s motion, finding that defendant had provided a reasonable excuse for its default and a meritorious defense to the action. The order also denied plaintiff’s cross-motion for summary judgment. Plaintiff appeals from so much of the order as granted defendant’s motion.

In order to open its default and obtain an order compelling plaintiff to accept a late answer, defendant had to provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action (see CPLR 3012 [d]; 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]). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]) and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where there is a lack of evidence of willfulness or neglect (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Here, the law office failure resulted from an isolated, inadvertent mistake, not from repeated neglect (see Gutman v A to Z Holding Corp., 91 AD3d 718 [2012]), and plaintiff never demonstrated or suggested, in the Civil Court or on appeal, any prejudice caused by defendant’s default (see Parisien v Allstate Ins. Co., 76 Misc 3d 14 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 555 [2005]). Consequently, the Civil Court did not improvidently exercise its discretion in finding that defendant had provided a reasonable excuse.

Defendant also demonstrated the existence of a potentially meritorious defense to the action. The declaratory judgment from the Supreme Court, Nassau County, was a conclusive final determination that defendant was not obligated to provide coverage or reimbursements for [*3]any and all no-fault related services submitted by plaintiff and plaintiff’s assignor for the subject motor vehicle accident and, thus, the instant action should be barred by res judicata (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]), notwithstanding that the declaratory judgment was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; St. Mark’s Med. Health Care, PLLC v 21st Century Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50851[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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

Roman Kravchenko and Jason Tenenbaum of counsel, for appellant. Short & Billy, P.C. (Soek Ho [Richard] Kang of counsel), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Sixth District (James F. Matthews, J.), entered September 29, 2023. The judgment, insofar as appealed from, upon awarding petitioner assigned first-party no-fault benefits in the principal sum of $1,454.70, awarded petitioner $1,360 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for the entry of a new judgment following a determination of the amount of attorney’s fees to which petitioner is entitled, in accordance with this decision and order.

Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated March 27, 2023, which upheld the award of an arbitrator dated January 27, 2023, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claim which had sought assigned first-party no-fault benefits in the amount of $1,454.70. The District Court (James F. Matthews, J.) granted the petition and, among other things, awarded petitioner “its reasonable counsel fees in bringing this Petition.” The court directed petitioner to submit a judgment for $1,454.70 plus interest, and attorney’s fees pursuant to 11 NYCRR 65-4.6 (d) and [*2]11 NYCRR 65-4.10 (j) (4). Along with a proposed judgment, petitioner submitted an attorney’s affirmation seeking $3,900 as petitioner’s legal fees for the Article 75 proceeding (see 11 NYCRR 65-4.10 [j] [4]). A judgment, entered on September 29, 2023, awarded petitioner the principal sum of $1,454.70, plus $678.86 in interest, $230 in costs and fees, and $1,360 in attorney’s fees. Petitioner appeals, arguing that the award of $1,360 for attorney’s fees was inadequate.

Pursuant to 11 NYCRR 65-4.6 (d), attorney’s fees for the arbitration and master arbitration, in which petitioner ultimately prevailed, are not discretionary, as they are established by the no-fault regulations (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co.,54 Misc 3d 128[A], 2016 NY Slip Op 51793[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Such fees are limited to 20 percent of the total amount of first-party benefits awarded, plus interest, subject to a maximum fee of $1,360. Further, having successfully prevailed in the Article 75 proceeding to vacate the master arbitrator’s award, petitioner was also entitled to an additional award of reasonable attorney’s fees therefor pursuant to 11 NYCRR 65-4.10 (j) (4), which amount is to be fixed by the court (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414 [2020]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

The appropriate attorney’s fees due for the arbitration pursuant to 11 NYCRR 65-4.6 (d), calculated at 20 percent of $1,454.70 plus $678.86, is $426.71. In awarding a total sum of $1,360 in attorney’s fees for both the arbitration and the CPLR article 75 proceeding, we assume that the Civil Court mistakenly applied the $1,360 cap imposed by 11 NYCRR 65-4.6 (d) to the attorney’s fees to be awarded for the article 75 proceeding pursuant to 11 NYCRR 65-4.10 (j) (4), and therefore, in effect, awarded $933.27 in attorney’s fees for the article 75 proceeding, notwithstanding the fact that petitioner submitted a claim seeking $3,900 as reasonable attorney’s fees for that proceeding. Under the circumstances, the matter must be remitted to the District Court for a determination of the amount of reasonable attorney’s fees to which petitioner is entitled as a result of the court proceeding, without any regulatory cap thereon (see 11 NYCRR 65-4.10 [j] [4]), in addition to the $426.71 regulatorily mandated attorney’s fees for the arbitration (see 11 NYCRR 65-4.6 [d]). The court shall state the evidentiary basis for its determination (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2017]). We note that petitioner is also entitled to reasonable attorney’s fees for this appeal (see 11 NYCRR 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C., 170 AD3d 1168).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the District Court for the entry of a new judgment following a determination of the total amount of attorney’s fees to which petitioner is entitled pursuant to both 11 NYCRR 65-4.6 (d) and 11 NYCRR 65-4.10 (j) (4).

GARGUILO, P.J., GOLDBERG-VELAZQUEZ and CONWAY, JJ., concur.