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Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 30, 2019, the petitioner appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered May 13, 2020. The order denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, the petition is granted, the arbitration award dated May 30, 2019, is vacated, and the matter is remitted to the Supreme Court, Queens County, to remit the matter to the arbitrator for further proceedings consistent herewith.

In April 2018, nonparty Biru Saha entered into a rental agreement with nonparty New Country Motor Car Group, Inc. (hereinafter New Country), which authorized Saha to operate a loaner vehicle owned by New Country and insured by Wesco Insurance Company (hereinafter Wesco). Thereafter, Saha was injured when he was involved in a motor vehicle collision while operating the loaner vehicle. GEICO General Insurance Company (hereinafter GEICO) paid basic no-fault benefits to Saha for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Saha from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 30, 2019, the arbitrator determined that GEICO was liable for the benefits paid to Saha.

In August 2019, GEICO commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and dismissed the proceeding. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; [*2]see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [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]).

Here, the arbitrator’s determination that GEICO was liable for the benefits paid to Saha was arbitrary and capricious and not supported by the evidence. The arbitrator’s interpretation of the rental agreement between Saha and New Country as relieving Wesco of its obligation to provide mandatory personal injury protection (hereinafter PIP) coverage was contrary to 11 NYCRR part 65, which provides, in effect, that all motor vehicle insurance policies must contain a mandatory PIP endorsement; expressly sets forth the language of the PIP endorsement; permits deviations from the prescribed language only upon prior approval; and prohibits any release, express or implied, from mandatory or optional PIP benefits (see 11 NYCRR 65-1.1, 65-1.7, 65-3.18). Moreover, for the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the arbitrator’s determination that GEICO’s policy provided coverage to Saha under the circumstances of this case was not supported by any evidence in the record. Accordingly, the Supreme Court should have vacated the arbitration award (see Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d at 981; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634; Matter of Allstate Ins. Co. v American Arbitration Assn., 26 AD3d 374 [2006]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

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Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Brian Kaufman of counsel), for appellant-respondent.

The Wright Firm, LLC, Rochester, NY (Ronald F. Wright of counsel), for respondent-appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated October 8, 2020. The order, insofar as appealed from, denied the plaintiff’s motion for leave to enter a default judgment against the defendant. The order, insofar as cross-appealed from, denied the defendant’s motion to change venue of the action to Monroe County based upon the convenience of material witnesses.

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, and the plaintiff’s motion for leave to enter a default judgment against the defendant is granted; and it is further,

Ordered that the cross appeal is dismissed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff, a no-fault insurance carrier, denied claims for reimbursement for medical treatment submitted by the defendant, a medical provider. Subsequently, the defendant commenced arbitration and was awarded the sum of $10,029.73. The plaintiff sought review of the award and the award was confirmed by a master arbitrator. The plaintiff thereafter commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, in Nassau County, premised on the location of its headquarters and principal place of business. In the complaint, the plaintiff asserted that the defendant was not entitled to reimbursement as the services provided by the defendant were not medically necessary and were not related to the subject motor vehicle accident.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to timely answer the complaint or appear in this action. The defendant failed to oppose the motion. Almost two months later, the defendant moved to change venue of the action to Monroe County pursuant to CPLR 510 (3), based upon the convenience of material witnesses. The plaintiff opposed the motion, contending that it was untimely and unsupported on [*2]the merits. In an order dated October 8, 2020, the Supreme Court denied both motions. As to the plaintiff’s motion, the court, in its discretion, found that the issuance of an award in the defendant’s favor, in light of the overall policy in favor of the resolution of litigation on the merits, warranted denial of the plaintiff’s motion. As to the defendant’s motion, the court determined that the defendant failed to satisfy any of the criteria set forth in CPLR 510 (3). The plaintiff appeals and the defendant cross-appeals.

Pursuant to CPLR 3215 (f), “[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to answer or appear” (Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 AD3d 803, 806 [2020]; see Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d 1125, 1126 [2019]; 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 order to successfully oppose a motion for leave to enter a default judgment, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action” (Maldonado v Mosquera, 186 AD3d 1352, 1353 [2020]). Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action (see OneWest Bank v Schiffman, 175 AD3d 1543, 1545 [2019]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Rosenzweig v Gubner, 194 AD3d 1086, 1088 [2021] [internal quotation marks omitted]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via delivery to an employee at the defendant’s actual place of business (see CPLR 308 [2]). 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]; see also Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126). The plaintiff also submitted, inter alia, a copy of the complaint verified by its counsel, its expert’s affirmed peer review, and the arbitration award and the master arbitration award affirming 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 Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126).

Because the defendant failed to oppose the plaintiff’s motion, he failed to meet his burden of establishing a reasonable excuse. Accordingly, the Supreme Court’s denial of the plaintiff’s motion for leave to enter a default judgment against the defendant was an improvident exercise of discretion, and the plaintiff’s motion should have been granted.

In light of our determination, the cross appeal has been rendered academic. Rivera, J.P., Maltese, Ford and Taylor, JJ., concur.

Decided on December 2, 2022

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

Law Offices of Gabriel & Moroff, P.C. (Jason Moroff and Matthew Sledzinsky of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Claudia Lanzetta, J.), dated June 15, 2021. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first, fifth, and seventh causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first, fifth, and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the claims underlying the fifth and seventh causes of action were timely denied, as these claims were denied within 30 days of defendant’s receipt thereof (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Plaintiff also asserts that the claim underlying the first cause of action was not timely denied. However, an initial EUO had been [*2]scheduled before defendant received this claim; therefore, defendant’s time to pay or deny this claim was tolled when this claim was received (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]). Further, as defendant timely scheduled a follow-up EUO after plaintiff failed to appear for the initial EUO, defendant’s time to pay or deny the claim remained tolled (see 11 NYCRR 65-3.6 [b]). Consequently, defendant’s subsequent denial of this claim, which was issued within 30 days of the second nonappearance, was timely (see Island Life Chiropractic Pain Care, PLLC, 74 Misc 3d 17; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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

Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber and Ruth Nazarian of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered December 11, 2019. 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 moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff failed to respond to defendant’s timely requests for additional verification. By order entered December 11, 2019, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Defendant’s cross motion should have been denied. With respect to the claim for date of service November 9, 2017, upon which the fourth cause of action of the complaint was based, the letters defendant sent seeking additional verification were incorrectly addressed to another [*2]provider, and, thus, the parties agree that defendant did not establish its entitlement to summary judgment dismissing that cause of action. With respect to the remaining claims, defendant failed to establish, prima facie, that it properly requested additional verification, since defendant’s letters to plaintiff, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting verification from plaintiff (see Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims at issue 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 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.

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

Husch Blackwell, LLP (Matthew A. Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 4, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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 Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint on the ground that there was an issue of fact as to whether the three-year limitation period of CPLR 214 (2) was applicable.

A review of the record reveals that defendant demonstrated, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc.; that the vehicle was self-insured by U-Haul, Inc.; that defendant did not insure the subject vehicle; and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. Thus, the record establishes that there is no coverage for no-fault benefits from defendant as defendant had not issued an automobile insurance policy which would cover [*2]the underlying accident (see Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co., 69 Misc 3d 144[A], 2020 NY Slip Op 51379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Parisien v Gallagher Bassett Servs., 66 Misc 3d 128[A], 2019 NY Slip Op 52040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We note that, while the six-year statute of limitations for contracts is applicable to no-fault claims against an insurer (see CPLR 213 [2]), to the extent any causes of action accrued against the self-insurer upon plaintiff’s submission of bills in 2010, the three-year statute of limitations set forth in CPLR 214 (2) would apply (see Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51206[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; S & R Med., P.C. v NYCTA-MABSTOA, 61 Misc 3d 138[A], 2018 NY Slip Op 51582[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

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

Decided on December 2, 2022

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

Decided on December 2, 2022

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair 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 18, 2022. The order denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

Plaintiff (Medical Supply) commenced this action to recover assigned first-party no-fault benefits, under claim number 757285-GH, for medical services that it had provided to its assignor as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 24, 2018. After Medical Supply commenced this action, defendant (Nationwide) answered and, separately, commenced a declaratory judgment action in the Supreme Court, Onondaga County, against Medical Supply, alleging that Nationwide had no duty to pay no-fault benefits to Medical Supply under claim number 757285-GH with respect to an accident which had occurred on August 22, 2018. In an order entered on March 9, 2020, the Supreme Court, upon Medical Supply’s default in appearance in the action, granted an unopposed motion by Nationwide for summary judgment, declaring that Nationwide was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by [*2]Medical Supply under claim number 757285-GH, with date of loss August 22, 2018.

Nationwide, thereafter, moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. The Civil Court, in an order entered on January 18, 2022, denied Nationwide’s motion, finding that an issue of fact exists as to when the accident occurred.

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (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]).

Nationwide established, prima facie, that Medical Supply sought in this action to recover for medical supplies furnished to its assignor as a result of injuries allegedly sustained by its assignor in the August 22, 2018 accident that was the subject of the Supreme Court declaratory judgment action. All of the documentary evidence created by persons with personal knowledge of the accident alleged that the accident occurred on August 22, 2018. Medical Supply’s only evidence that the accident occurred on August 24, 2018 was the allegation in its own complaint, which was not based upon personal knowledge and which contradicts the documents created and executed by the assignor himself, the assignor’s counsel’s letter of representation, and the police accident report. Therefore, Medical Supply’s opposition was wholly insufficient to rebut Nationwide’s prima facie showing. Consequently, the instant action is barred by res judicata.

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

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

Decided on December 2, 2022

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