Decided on December 20, 2018

Defendant appeals from two judgments of the Civil Court of the City of New York, Bronx County (Marian C. Doherty, J.), entered April 19, 2018, after a consolidated nonjury trial, in favor of plaintiff and awarding it damages in the principal amounts of $861.32 and $593.77, respectively.

Per Curiam.

Judgments (Marian C. Doherty, J.), entered April 19, 2018, affirmed, with one bill of $25 costs.

The trial court properly denied defendant-insurer’s belated attempt to invoke the primary jurisdiction of the Workers’ Compensation Board [WCB] in these consolidated first-party no-fault actions. Other than asserting the workers’ compensation statute as one of eighteen affirmative defenses in its respective May 2011 answers, defendant did not otherwise raise or pursue the workers’ compensation issue during the course of the litigation, and indeed, only raised the issue at trial, nearly seven years later. Under these particular circumstances, defendant “may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation” (Sangare v Edwards, 91 AD3d 513, 515 [2012]; see Ovenseri v St. Barnabas Hosp., 94 AD3d 495 [2012]; Bastidas v Epic Realty, LLC, 58 AD3d 776, 777 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 20, 2018

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

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

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

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

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

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

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

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

Decided on December 7, 2018

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

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

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

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

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

For the reasons stated in Market St. Surgical Ctr., as Assignee of Diawara Bakary v Global Liberty Ins. Co. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2017-562 K C], [*2]decided herewith), the order is reversed, defendant’s motion to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers’ compensation fee schedule.

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

Decided on December 7, 2018

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

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

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

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

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

For the reasons stated in Market St. Surgical Ctr., as Assignee of Diawara Bakary v Global Liberty Ins. Co. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2017-562 K C], [*2]decided herewith), the order is reversed, defendant’s motion to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers’ compensation fee schedule.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decided on December 7, 2018

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

Rossillo & Licata, P.C. (Nancy S. Linden of counsel), for appellant. Korsunskiy Legal Group, P.C. (Henry R. Guindi and Melissa Berkman 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 16, 2015, deemed from a judgment of that court entered March 9, 2015 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 16, 2015 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,916.46.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered January 16, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered on March 9, 2015, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Pursuant to 11 NYCRR 65—3.6 (b), upon sending a second examination under oath (EUO) scheduling letter to plaintiff’s assignor, defendant was required to send plaintiff a delay letter (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dist 2007]; see also Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). However, it failed to do so. Consequently, defendant failed to demonstrate that it had properly tolled the time to pay or deny plaintiff’s claims and, as a result, it is precluded from raising its proferred defense that plaintiff’s assignor had failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the judgment is affirmed.

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