Decided on March 29, 2019

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rossillo & Licata, P.C. (Melissa A. Berkman, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 7, 2016. The order granted defendant’s motion to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

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 which granted defendant’s motion to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

For the reasons stated in Prompt Med. Supply Inc., as Assignee of Gladstone Lawrence v State Farm Mut. Auto Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-858 K C], decided herewith), the order is affirmed.

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

Decided on March 29, 2019

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rossillo & Licata, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 7, 2016. The order granted defendant’s motion to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

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 which granted defendant’s motion to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

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]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

Contrary to plaintiff’s contention, the Civil Court did not improvidently exercise its discretion in finding that defendant had established a reasonable excuse for not timely answering the complaint, in that defendant had reasonably believed that plaintiff might withdraw the action and, in any event, plaintiff had told defendant that it would not commence any default proceedings (see DeStaso v Bottiglieri, 52 AD3d 453, 455 [2008]; Saltzman v Knockout Chem. & Equip. Co., 108 AD2d 908, 908 [1985]). Contrary to plaintiff’s further argument, defendant [*2]demonstrated that it had a potentially meritorious defense in that plaintiff had failed to provide requested verification.

Accordingly, the order is affirmed.

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

Decided on March 29, 2019

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which sought to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over defendant.

For the reasons states in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant’s motion to dismiss the complaint is granted (see also Matter of Government Empls. Ins. Co. v Basedow, 28 AD3d 766 [2006]; Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]).

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

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary Whiting of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered February 10, 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 May 10, 2011. Defendant interposed an answer on June 29, 2011. Defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on October 5, 2015. By notice of motion dated March 16, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint, alleging that plaintiff had not filed a notice of trial or otherwise responded to the 90-day demand. Plaintiff served a notice of trial on November 4, 2016 and served opposition to defendant’s motion on November 22, 2016, but did not seek to explain its delay in responding to the 90-day demand or set forth a meritorious cause of action until it served a sur-reply on February 6, 2017, four days before the motion was scheduled for oral argument. Defendant appeals from so much of an order of the Civil Court as denied its motion to dismiss.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [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 [*2]& 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Plaintiff sought to make the required showing for the first time in sur-reply papers, which the Civil Court should not have considered (see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983 [2015]; Flores v Stankiewicz, 35 AD3d 804 [2006]). Consequently, defendant’s motion should have been granted.

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

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

723761/17

Attorney for Plaintiff:

David Landfair, Esq.

Kopelevich and Feldsherova

882 Third Avenue, 3rd Fl., Ste Ne1

Brooklyn, New York 11232

Attorney for Defendant:

Jeffrey S. Siegal

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road

Melville, New York 11747

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1, 2

Notice of Cross-Motion

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, defendant moves for summary judgment pursuant to CPLR 3212, based on plaintiff’s alleged failure to appear for an Examination Under Oath “EUO.”

Defendant received plaintiff’s bills on March 24, 2017; and on March 27, 2017, sent plaintiff a letter scheduling an EUO for April 10, 2017. Defense counsel claims plaintiff failed to appear for the EUO, and that he memorialized the non-appearance by placing a statement on the record.

Defendant states that on April 12, 2017, it sent a follow up letter rescheduling the EUO to April 26, 2017. Plaintiff again failed to appear for the EUO, and defense counsel memorialized the nonappearance on the record.

On May 4, 2017, defendant denied the bills at issue based on plaintiff’s failure to attend an EUO, which it contends, absolves defendant of the responsibility to provide coverage.

The appearance of plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, 2006 NY Slip Op 09604 [2nd Dept 2006]); thus, defendant is correct that plaintiff’s failure to appear vitiates insurer’s obligations under the policy (see Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 584 N.Y.S.3d 607 [2nd Dept 1992]).

However, to demonstrate entitlement to summary judgement based on a provider’s failure to appear for an EUO, defendant must prove through admissible evidence, it had twice duly demanded an EUO from the provider, that the provider failed to appear, and defendant issued a timely denial. (See Island Life Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 136(A), 2018 NY Slip Op 51552[U] [App. Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2nd Dept 2014]).

In the instant matter, defendant argues plaintiff did not attend any of the two EUOs scheduled. However, defendant has the burden to establish, through admissible evidence, that that the EUO scheduling letters, and defendant’s denials, were properly mailed to the plaintiff. (See Parisien v Maya Assur. Co., 59 Misc 3d 146(A), 2018 NY Slip Op 50766(U) [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018]; L.Z.R. Raphaely Galleries, Inc. v Lumbermens Mut. Cas. Co., 191 AD2d 680, 595 N.Y.S.2d 802 [2nd Dept 1993]).

To establish the admissibility of the two scheduling letters, serving as the basis of defendant’s motion, defendant the must prove that the documents were (1) “made in the regular course of defendant’s business” and (2) that “it was the regular course of business of the defendant to make” the documents at the time or within reasonable time after the event reflected in the documents. (See CPLR 4518(a)).

To fulfill the requirements of CPLR 4518 (a), defense counsel states that the EUO scheduling letters were created in the regular course of business of his law firm, which however, satisfies only the first prong of CPLR 4518(a). The second prong of the statute is not satisfied, as counsel does not state or establish that “it was the regular course of his law firm to make” the documents. Further, counsel represents that the letters were created by “an individual with knowledge” without, however, providing any information about the person, the basis of the person’s knowledge, whether the individual was an employee of defense counsel, or created the letters, in the regular course of business of defendant’s law firm. Defendant’s failure to satisfy the requirements of CPLR 4518(a), renders the EUO scheduling letters, inadmissible, and warrants denial of the motion, as defendant fails to establish as a matter of law that it timely requested the EUOs.

Had defendant established the evidentiary foundation of the EUO letters, it’s motion would still be denied, as it further fails to establish that the EUO scheduling letters were properly addressed and mailed to the plaintiff.

To establish entitlement to summary judgment, defendant must prove that it had a procedure designed to ensure that the EUO letters and denials were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 [*2]AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept 2015]).

In the case at bar, defense counsel states that an individual affixes “the proper postage to the envelope containing the EUO request letter.” However, the statement is conclusory, as counsel provides no information as to whether the envelopes are addressed by a computer, machine, and/or by an employee; how the envelopes are addressed to ensure the accuracy of the recipient’s address, and the method by the envelopes are weighed and affixed with proper postage. Accordingly, defendant fails to establish its proper mailing of the EUO scheduling letters.

With respect to the mailing of the denials, defendant’s claims adjuster states they were properly mailed to the plaintiff, as the “recipient’s address” is printed on the denial, and on the envelope containing the denial.

However, the claims adjuster fails to provide any information as to how and by whom the names and the proper addresses of the recipient, are obtained and printed on the denial, and on the envelope containing the denial. Nor does defendant’s adjuster establish that defendant’s mailing practices are designed to ensure that the envelopes are correctly addressed. Thus, defendant’s motion is further denied as defendant failed to show that it correctly addressed the denials to the plaintiff.

In addition, there is no evidence establishing that defendant affixed proper postage on the envelopes bearing the denials. Defendant’s claims adjuster concludes that proper postage is “applied” to the envelopes containing the denials, but fails to provide any information regarding the individual, if any, who applies the postage, whether the postage is applied by a computer, a machine, or the method by which proper postage is determined.

Based on the foregoing, defendant failed to eliminate all triable issues of fact in connection with establishing defendant’s proper mailing of the EUO scheduling letters and denials. As defendant did not establish its entitlement to summary judgment, irrespective of the sufficiency of plaintiff’s opposition (see Alverez v Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]), its motion is denied.

Dated: March 28, 2019

_________________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Gabriel & Shapiro, LLC (Max Valerio of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (James F. Matthews, J.), dated August 28, 2017. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, and granted plaintiff’s cross motion for summary judgment upon the entire complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, are granted, and the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover upon those 17 claims are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the District Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, and granted plaintiff’s cross motion for summary judgment upon the entire complaint. The District Court determined that letters scheduling examinations under oath (EUOs) of plaintiff were defective because they did not specify the claims to which the letters pertained.

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to [*2]the finding by the District Court, the EUO scheduling letters were not “defective.” We note that the initial EUO scheduling letter identified the assignor, the date of the accident and defendant’s file number. The initial EUO scheduling letter resulted in a toll of defendant’s time to pay or deny plaintiff’s claims as to each claim form which had been submitted by the same plaintiff for the same assignor and accident prior to the EUO request, as long as the request had been timely with respect to such claim, and to any claim form received subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact. However, defendant concedes that it failed to timely request EUOs for claims in the amounts of $148.69, $188.16, $54.74 and $138.72 and offers no basis to disturb so much of the order as granted plaintiff summary judgment on those claims.

Defendant, if it be so advised, may move in the District Court to resettle the order of the District Court to correct the error regarding defendant’s name in the caption therein.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, are granted, and the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover upon those 17 claims are denied.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.

[*1]

Hollander Legal Group, P.C. (Harris J. Zakarin, P.C., Melville, NY, of counsel), for appellant.

Aleksandr Vakarev, Brooklyn, NY (Harlan Wittenstein of counsel), for respondent.

In an action to recover no-fault benefits for medical expenses, the defendant appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated October 26, 2017. The order, inter alia, in effect, denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the complaint is granted.

On October 3, 2014, the plaintiff allegedly was injured when he was struck by a motor vehicle owned by George W. Nellen. The defendant was Nellen’s motor vehicle insurance carrier at the time of the accident. The plaintiff submitted an application for no-fault benefits for medical expenses to the defendant. The defendant denied the plaintiff’s application on the ground that the plaintiff’s injuries were not causally related to the alleged motor vehicle accident.

The plaintiff commenced this action to recover no-fault benefits for medical expenses. After issue was joined, the defendant moved pursuant to CPLR 3212, 3211 (a) (1), (3) and (7) to dismiss the complaint. The defendant alleged, inter alia, that the plaintiff had assigned his eligibility to receive no-fault benefits from the defendant to various medical providers, and, thus, he had no standing to maintain the action. The Supreme Court denied those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (1) and (7), and in effect denied those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (3) and 3212, on the grounds that the motion was premature due to outstanding disclosure. The defendant appeals.

The defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assigned his right to no-fault benefits to 10 different medical providers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209 [2018]).

We disagree with the Supreme Court’s denial of the defendant’s motion without prejudice with leave to renew due to outstanding disclosure. The plaintiff failed to establish that discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendant (see CPLR 3212 [f]; Portalatin v City of New York, 165 AD3d 1302 [2018]; Williams v Spencer-Hall, 113 AD3d 759, 760 [2014]; Boorstein v 1261 48th St. Condominium, 96 AD3d 703, 704 [2012]).

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint. Mastro, J.P., Cohen, Maltese and LaSalle, JJ., concur.

[*1]

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

In an action for a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered October 30, 2017. The order denied the plaintiff’s unopposed motion for leave to enter a default judgment against the defendant.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for leave to enter a default judgment against the defendant is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas.

The plaintiff, a no-fault insurance carrier, commenced this action seeking a de novo adjudication of an insurance dispute concerning the denial of a no-fault claim involving the defendant (see Insurance Law § 5106 [c]). The plaintiff sought a judgment declaring that the plaintiff is not obligated to pay the claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, on the grounds that the services were not medically necessary, were not related to the subject motor vehicle accident, and/or were billed in excess of the fee schedule. The defendant had been awarded more than $5,000 against the plaintiff as a result of a master arbitration award.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to answer the complaint or appear in this action. The defendant failed to oppose the motion. The Supreme Court denied the plaintiff’s motion on the basis that the master arbitration award confirming an original arbitration award was supported by evidence in the record, was rationally based, and was not arbitrary or capricious. The plaintiff appeals.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to file proof of (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) the other party’s default (see CPLR 3215 [f]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768, 769 [2016]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via the Secretary of State (see Business Corporation Law §§ 306 [b]; 1513; CPLR 311 [a] [1]), and an additional copy of the summons and complaint upon the defendant pursuant to CPLR 3215 (g) (4). In further support, the plaintiff submitted its attorney’s affirmation, inter alia, attesting to the defendant’s failure to answer or appear in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). It also submitted, inter alia, a copy of the complaint verified by its attorney (see CPLR 105 [u]; 3020 [d] [3]; 3215 [f]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195 [2017]; Martin v Zangrillo, 186 AD2d 724 [1992]), its expert’s affirmed peer review, the arbitration award in excess of $5,000, and the master arbitration award confirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770). The defendant failed to oppose the plaintiff’s motion (see Fried v Jacob Holding, Inc., 110 AD3d at 60).

Accordingly, the plaintiff’s motion for leave to enter a default judgment against the defendant should have been granted. Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas (see Lanza v Wagner, 11 NY2d 317, 334 [1962]). Mastro, J.P., Balkin, LaSalle and Connolly, JJ., concur.