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

Advanced Recovery Equipment and Supplies, LLC, as Assignee of Yvrose Joseph, Respondent,

v

Park Insurance Company, Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 9, 2016. 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 which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

[*1]

Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Paul Barrett of counsel), for appellant.

Jones Jones LLC, New York, NY (Jacqueline R. Mancino of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 5, 2016, the petitioner appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered February 3, 2017. The order denied the petition to vacate the arbitration award.

Ordered that the order is affirmed, with costs.

This appeal involves an award pursuant to the mandatory arbitration provision of Insurance Law § 5105, which governs certain disputes regarding loss transfers between insurers and compensation providers. The respondent, New York City Transit Authority (hereinafter NYCTA), sought reimbursement from the petitioner, Progressive Advanced Insurance Company (hereinafter Progressive), for workers’ compensation benefits that NYCTA had paid in lieu of first party benefits. NYCTA paid the funds to its employee, who was a passenger in an NYCTA vehicle that was involved in a collision with a vehicle operated by Progressive’s insured. Progressive admitted that its insured was 100% at fault in the happening of the collision; the only issue at arbitration related to the amount of damages NYCTA was entitled to recoup pursuant to the loss transfer provision.

The arbitrator determined that a 20% no-fault offset set forth in Insurance Law § 5102 (b) did not apply to the workers’ compensation wages portion of the benefits NYCTA had paid, because a one-third offset had already been applied to the wages pursuant to the Workers’ Compensation Law. Progressive commenced this proceeding pursuant to CPLR article 75 to vacate the arbitration award, and the Supreme Court denied the petition. Progressive appeals.

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105 [b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see [*2]Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758 [1980]).

Here, the arbitrator’s determination was supported by a “reasonable hypothesis” and cannot be said to be arbitrary or capricious (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d at 758-759).

Accordingly, we agree with the Supreme Court’s determination to deny the petition to vacate the arbitration award. Mastro, J.P., Roman, Duffy and Brathwaite Nelson, JJ., concur.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent. Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 18, 2015 and May 26, 2016, respectively. The order entered May 18, 2015 granted the branch of defendant’s motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross motion, in effect, to amend the complaint. The order entered May 26, 2016 denied plaintiff’s motion for leave to reargue.

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

ORDERED that the order entered May 18, 2015 is affirmed, with $25 costs; and it is further,

ORDERED that the appeal from the order entered May 26, 2016 is dismissed, as no appeal lies from an order denying reargument (see Andre v City of New York, 47 AD3d 605 [2008]; DeFreitas v Board of Educ. of City of Mount Vernon Dist. No. 416, 129 AD2d 672 [1987]).

Prior to the commencement of this action by a provider to recover assigned first-party no-fault benefits arising out of injuries allegedly sustained by its assignor in a motor vehicle accident on August 3, 1999, the provider had submitted claims, involving the same assignor and the same motor vehicle accident, to arbitration. The arbitrator found that the provider had failed to prove its standing to sue, as the provider’s proof was insufficient to establish that the signers of the claim forms were the provider’s employees rather than independent contractors. The arbitrator’s award, dated September 10, 2003, dismissed the claim “without prejudice to the Applicant’s right [*2]to initiate a new arbitration with supplementary proofs.” There was no new arbitration or any application to vacate or modify the award.

On March 8, 2005, plaintiff commenced the instant action in the Civil Court. Defendant answered, asserting, as an affirmative defense, that plaintiff had previously elected to arbitrate its claims. Plaintiff filed a notice of trial in 2008, but, upon defendant’s motion, the Civil Court vacated the notice of trial. In 2014, the Civil Court granted a motion by plaintiff to restore the action to the trial calendar and directed plaintiff to file a new notice of trial. Defendant moved in the same year to dismiss the complaint, pursuant to CPLR 3211 (a) (3) and (5) or, in the alternative, for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims, as plaintiff, prior to commencing this action, had elected to arbitrate them. In opposition, plaintiff argued that defendant’s motion was untimely, and that, contrary to defendant’s contention, plaintiff’s action was not barred, as there was no indication that plaintiff was litigating the same bills that had been submitted to arbitration and because the merits of the claims had not been reached in arbitration. Plaintiff cross-moved, in effect, to amend the amount sought in the complaint. By order entered May 18, 2015, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross motion, on the ground that plaintiff had elected arbitration as the forum for resolution of its claims. Plaintiff’s subsequent motion for leave to reargue was denied by order entered May 26, 2016.

Plaintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident (see Roggio, 66 NY2d 260; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). There is no merit to plaintiff’s argument that defendant’s motion should have been denied because defendant failed to demonstrate that the bills which are the subject of the present action were the same ones which had been submitted to arbitration. “[A] claimant disappointed in the pursuit of medical expense reimbursement in arbitration cannot, on the next rejected bill arising from the same accident, then look to the courts” (Roggio, 66 NY2d at 263). We find that the branch of defendant’s motion seeking summary judgment was timely, as plaintiff’s first notice of trial had been vacated (see Farrington v Heidkamp, 26 AD3d 459 [2006]), and defendant made its motion within 120 days after plaintiff had filed its second notice of trial upon the direction of the Civil Court (see CPLR 3212 [a]). Plaintiff’s argument, that defendant had waived its Roggio defense, is not properly before us, as it is raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider it. Upon the record presented, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Accordingly, the order entered May 18, 2015 is affirmed and the appeal from the order entered May 26, 2016 is dismissed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant, defendant moved for summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 on the ground that that portion of the action is premature because plaintiff had failed to provide requested verification. Plaintiff appeals from so much of an order of the Civil Court entered January 27, 2016 as granted that branch of defendant’s motion.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that so much of the complaint as sought to recover the sum of $3,399.51 is premature because it had properly mailed the verification requests at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff further argues, the affidavit submitted by plaintiff in [*2]opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether that portion of the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.

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

Decided on November 2, 2018

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

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 16, 2015. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 16, 2015, the Civil Court denied defendant’s motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was “Defendant’s practices and procedures regarding its receipt of mail in Atlanta, Georgia.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff does not challenge that defendant demonstrated its prima facie entitlement to summary judgment, but rather argues that plaintiff raised a triable issue of fact in opposition. However, as plaintiff’s argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment. We further note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

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

Decided on November 2, 2018

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

Decided on November 2, 2018

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

[*1]

Civil Court of the City of New York, Bronx County, October 31, 2018

APPEARANCES OF COUNSEL

Gullo & Associates, LLC. for defendant.

Gary Tsirelman, PC for plaintiff.

Upon the testimony and evidence proffered at trial, the court hereby finds in favor of defendant and dismisses the complaint.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On May 16, 2008, assignor Sharise Davis (Davis) was involved in an automobile accident. At the time of the instant accident, Davis was covered under an automobile insurance policy issued by defendant, which provided benefits under the New York State No-Fault Law.^[FN*] Davis sought treatment from plaintiff Sunrise Acupuncture, P.C., the assignee of Davis’ no-fault benefits under defendant’s policy. Plaintiff submitted claims for medical treatment provided to Davis and defendant denied them. Based on the foregoing, pursuant to the New York State No-Fault Law and the policy, plaintiff seeks judgment in the amount of $425 plus interest.

On July 28, 2013, this court (Taylor, J.) denied defendant’s motion for summary judgment and dismissal of the complaint. The court held that defendant failed to submit admissible evidence in support of its claim that Davis was not an insured under the policy issued to the Albanos. Defendant appealed and the Appellate Term affirmed (Sunrise Acupuncture P.C. v Kemper Independence Ins. Co., 50 Misc 3d 133[A], 2016 NY Slip Op 50025[U], *1 [App Term, 1st Dept 2016] [“We sustain the denial of defendant-insurer’s motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the ‘legal representative of the deceased,’ defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision”]).

At trial, the parties stipulated to the admission of several documents in evidence, some of which will be discussed hereinafter. More importantly, the parties limited the court’s inquiry to one issue, namely, whether under the instant facts defendant’s insurance policy afforded coverage to Davis.

The parties submitted the insurance policy at issue (exhibit B). Said policy was issued to Ronald and America Albano. According{**62 Misc 3d at 309} to the policy, the term began on July 24, [*2]2007, and ended a year later. Per the declarations, the policy covered a 1998 Mercury and a 1980 Plymouth automobile. Section III of the policy governed coverage with respect to the foregoing vehicles. Specifically, the policy defined a “your covered auto” as “[a]ny vehicle shown in the Declaration,” and “[a]ny of the following types of vehicles on the date you become the owner . . . [including] [a] private passenger auto.” The policy further defined a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” Per the policy, “ '[b]odily injury,’ means bodily harm, sickness or disease, including death that result.” “ ’Occupying’ means in, upon, getting in, on out or off.” Part B or the Medical Payments Coverage portion of the policy defined “insured” as “[y]ou or any ‘family member’ . . . [w]hile ‘occupying’ . . . a motor vehicle designed for use mainly on public roads.” Part B of the policy further stated that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” Section IV of the policy, titled General Policy Conditions, stated that

“[y]our rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for . . . [t]he surviving spouse if a resident in the same household at the time of death . . . [and] [t]he legal representative of the deceased person as if a named insured shown in the Declarations . . . only with respect to . . . [t]he representative’s responsibility to maintain or use ‘your covered auto.’ ”

The parties submitted two death certificates (exhibit D), which indicate that the Albanos died in June 2007, and letters testamentary (exhibit C), which establish that on January 7, 2008, Raquel Davis (Raquel) was appointed as the executor of Ronald Albano’s will. The parties submitted a notice of intention to make claim (exhibit F), which indicates that Davis made a claim to defendant for no-fault benefits arising from an accident on May 16, 2008, in which she was involved while operating the 1998 Mercury. Lastly, the parties submitted a letter dated July 14, 2008 (exhibit E) sent by defendant to Davis, wherein defendant denies coverage to Davis under the policy because the accident occurred after the Albanos died and the policy “issued to the Albanos contains a provision that {**62 Misc 3d at 310}limits coverage upon the death of the named insured to the surviving spouse or legal representative of the deceased person, but only with respect to the representative’s legal responsibility to maintain or use the vehicle scheduled on the policy.” The letter further stated that “[s]ince you are neither the legal representative nor surviving spouse of Ronald Albano, the policy will not provide you with coverage as an insured.”

Principles of contract interpretation apply equally to insurance policies (Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 143 AD3d 146, 151 [1st Dept 2016], affd 31 NY3d 131 [2018]; State of New York v American Mfrs. Mut. Ins. Co., 188 AD2d 152, 154 [3d Dept 1993]). Thus, in interpreting an insurance policy, the court must determine the rights and obligations of the parties, using the specific language of the policy itself (Gilbane Bldg. Co./TDX Constr. Corp. at 150-151 [“In this action for a judgment declaring the parties’ rights under an insurance policy, this Court must be guided by the rules of contract interpretation because (a)n insurance policy is a contract between the insurer and the insured. As a result, the extent of coverage is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage” (internal quotation marks and citation omitted)]; Sanabria v American Home Assur. Co., 68 NY2d 866, 868 [1986]; State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32-33 [1st Dept 1979]).

When the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties is a question of law to be adjudicated by the court (Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254 [1890]; Stainless, Inc. v Employers Fire Ins. Co., 69 [*3]AD2d 27, 32 [1st Dept 1979], affd 49 NY2d 924 [1980]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]). However, if the language in the policy is ambiguous, the court can use extrinsic evidence to determine the intent of the parties to the policy and resolution of the rights and obligations of the parties is a question of fact, to be determined by the trier of fact (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 173 [1973]; Stainless, Inc. at 32). If the extrinsic evidence{**62 Misc 3d at 311} is conclusory, failing to equivocally resolve the ambiguity in a policy, interpretation of the policy remains a question of law for the court to decide, deciding any ambiguities against the insurer (State of New York at 669; Stainless, Inc. at 32).

In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]; Sanabria at 868). In such a case, the policy should be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162 [2005]; American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277 [1st Dept 1990]; Fifth Ave. Exec. Staffing v Virtual Communities, Inc., 2002 NY Slip Op 50082[U], *1 [App Term, 1st Dept 2002]).

Based on the foregoing, the court finds that at the time of the accident, Davis was not an insured as defined by the policy issued by defendant to the Albanos. As such, Davis was never entitled to no-fault benefits under the instant policy.

As noted above, when interpreting coverage pursuant to an insurance policy, we do so using contract law (Gilbane Bldg. Co./TDX Constr. Corp. at 151; State at 154). Thus, when the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties thereunder is a question of law for the court (Kenyon at 254; Stainless, Inc. at 32; Stasack at 866). In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. at 232; Sanabria at 868), and the policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Here, because it is undisputed that Davis’ accident occurred nine months after the death of the Albanos, it is clear that the demise of the Albanos triggered section IV of the policy, rendering section III of the policy inapplicable and limiting coverage to those persons listed under section IV of the policy. Specifically, upon the Albanos’ death, per the policy the only insureds were a surviving spouse and generally, the Albanos’ legal representative.{**62 Misc 3d at 312} Given that Raquel was appointed as executor of Ronald Albano’s will, Raquel was the only insured under the instant policy and the only person entitled to coverage. Thus, Davis, which as per Kemper’s letter was Raquel’s daughter, was neither a surviving spouse as defined by the policy or a legal representative of the Albanos. Thus, Davis was not an insured under the instant policy. Accordingly, defendant had no obligation to provide no-fault benefits to Davis and properly denied those claims.

Plaintiff’s reliance on section III of the instant policy to extend coverage to Davis is unavailing. While it is true that section III of the policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household,” and part B of the policy states that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured,’ ” section III is simply inapplicable here since it clearly only applies while the Albanos were alive. Any other interpretation would render the limiting language in section IV of the policy meaningless, which would violate a central tenet of contract law—that a policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank [*4]at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Moreover, even if section III were dispositive, here, the record is bereft of any evidence that Davis was an insured thereunder. To be sure, part B of the policy provided coverage for “ ’bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” However, as noted above, an insured is, inter alia, a “family member,” meaning “a person related to you by blood, marriage or adoption who is a resident of your household.” Here, the record is bereft of any evidence establishing that Davis was related to the Albanos and that if so, she resided in their household. It is hereby ordered that the complaint be dismissed, with prejudice.

Footnotes

Footnote *:Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law § 5101 et seq.) and its implementing regulations (11 NYCRR 65-3.1 et seq.).

Gary Tsirelman, P.C. (Joseph Padrucco and Devon Christian of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Marisa Villafana-Jones of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered March 10, 2017. 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.

After plaintiff filed a notice of trial in this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion arguing, among other things, that the motion was untimely. In reply papers, defendant conceded that its motion was untimely and, for the first time, sought to provide good cause for its untimely filing of the motion. By order entered March 10, 2017, the Civil Court found “defendant’s motion to be timely,” and granted the motion.

CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). On appeal, as in the court below, defendant concedes that it moved for summary judgment more than 120 days after the notice of trial had been filed. Defendant argues that it had been unaware that the motion was late until it read plaintiff’s opposition papers, after which it submitted reply papers in which it sought to provide good cause for the late motion. Since defendant failed to demonstrate, in its moving papers, good cause for not filing its motion within the time frame of CPLR 3212 (a), the Civil Court improvidently exercised its discretion in entertaining defendant’s motion after considering the good cause arguments defendant raised for the first time in its reply papers (see [*2]Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]). We note that “[a]rguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply” (Gluck v New York City Tr. Auth., 118 AD3d 667, 668 [2014]). In the case at bar, however, “there is no indication that plaintiff was afforded an opportunity to submit a surreply” (Gottlieb v Wynne, 159 AD3d 799, 801 [2018]).

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

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