Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 15, 2013. The order denied defendant’s motion to vacate a default judgment and, upon vacatur, to dismiss the action pursuant to CPLR 3215 (c).

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits, and the summons and complaint were personally served upon defendant’s authorized agent (see CPLR 311 [a] [1]) on March 13, 2007. It is undisputed that defendant did not answer the complaint and, thus, defaulted in the action on April 2, 2007 by failing to appear within 20 days after service of the summons (CCA 402 [a]). In November 2007, which was within one year of defendant’s default, plaintiff moved for leave to enter a default judgment. Defendant admitted receipt of the motion papers, which subsequently were rejected by the court. On April 17, 2008, plaintiff served a second motion for leave to enter a default judgment, and the Civil Court granted plaintiff’s motion on default. A default judgment awarding plaintiff the principal sum of $3,392.13 was entered on November 28, 2011. In April 2012, defendant moved to vacate the judgment and, upon vacatur, to dismiss the action, pursuant to CPLR 3215 (c), on the ground that plaintiff had failed to enter a default judgment within one year of defendant’s default. By order entered March 15, 2013, the Civil Court denied defendant’s motion, finding that defendant had failed to offer a reasonable excuse for not answering the complaint or a meritorious defense to the action.

CPLR 3215 (c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default. Where a plaintiff has made an application to the court for the entry of a default judgment within that period, the court may not later dismiss the complaint as abandoned pursuant to CPLR 3215 (c) (see U.S. Bank N.A. v Poku, 118 AD3d 980 [2014]; Jones v Fuentes, 103 AD3d 853 [2013]), even where, as here, the application was unsuccessful (see Brown v Rosedale Nurseries, 259 AD2d 256 [1999]). Furthermore, in the present case, as plaintiff filed the second motion for the entry of a default judgment, plaintiff demonstrated that it had not abandoned the action (see Jones, 103 AD3d 853; Brown, 259 AD2d [*2]256; see also Icon Equip. Distribs. v Gordon Envtl. & Mech. Corp., 272 AD2d 579 [2000]; Patterson v Patterson, 220 AD2d 731 [1995]). Consequently, defendant was not entitled to dismissal of the complaint.

With respect to the branch of defendant’s motion, pursuant to CPLR 5015 (a), to vacate the default judgment, which was entered upon an order that granted plaintiff’s unopposed motion, defendant was required to demonstrate both a reasonable excuse for the default and 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 [1986]). Defendant’s sole excuse for failing to oppose plaintiff’s motion for entry of a default judgment was its denial of receipt of plaintiff’s motion, which excuse was insufficient to rebut the presumption of proper service that was raised by plaintiff’s affidavit of service (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Engel v Lichterman, 62 NY2d 943 [1984]; Ortega v Trefz, 44 AD3d 916 [2007]; Oparaji v Citibank, N.A., 44 Misc 3d 25 [App Term, 2d, 11th & 13th Jud Dists 2014]). In addition, defendant did not explain its failure to appear or answer the complaint, or demonstrate the existence of a potentially meritorious defense to the action (see Giraldo v Weingarten, 81 AD3d 885 [2011]). We further note that defendant failed to proffer any excuse for its five-month delay in moving to vacate the default judgment (see Bethune v Prioleau, 82 AD3d 810 [2011]). Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decided on March 26, 2015

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

Decided on March 23, 2015

Decided on March 17, 2015

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

Decided on March 17, 2015

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

Decided on March 17, 2015

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 17, 2012. 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 the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s first cause of action is granted and 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 and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

The affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment upon its first cause of action (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). “[D]efendant’s mere denial of receipt of [the claim at issue] was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing” (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant failed to raise a triable issue of fact with respect to plaintiff’s first cause of action.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s second cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from one of plaintiff’s employees, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s first cause of action is granted and defendant’s cross [*2]motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 30, 2012, deemed from a judgment of the same court entered June 25, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 30, 2012 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,358.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 30, 2012 is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]), or which issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (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, 11th & 13th Jud Dists 2011]).

While the supporting affidavit by plaintiff’s owner established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment should have been denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33). In any event, the affidavit by defendant’s litigation examiner and the attached complete copies of the denial of claim submitted in opposition to plaintiff’s motion were sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the judgment is reversed, the order entered May 30, 2012 is vacated, and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on March 16, 2015

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 14, 2012, deemed from a judgment of the same court entered September 24, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 14, 2012 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 $3,282.32.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 14, 2012 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied these claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), defendant established its prima facie entitlement to summary judgment dismissing the complaint.

In plaintiff’s papers submitted in opposition to defendant’s motion and in support of plaintiff’s cross motion, plaintiff annexed, among other things, a so-ordered stipulation which states that if defendant failed to provide discovery responses within 60 days of the date of the so-ordered stipulation, defendant would be precluded from offering any evidence concerning the information which plaintiff had sought and which defendant had failed to provide. While plaintiff’s counsel asserts that defendant failed to comply with the so-ordered stipulation and that plaintiff had sought discovery pertaining to defendant’s defense that plaintiff’s assignor had failed to appear, plaintiff’s cross-moving papers do not contain a copy of the discovery demands served by plaintiff and, in any event, the record does not establish, prima facie, that defendant failed to comply with the terms of the so-ordered stipulation. In light of the foregoing, neither party is entitled to summary judgment, as there is an issue of fact as to whether defendant is barred from interposing its proffered defense due to defendant’s alleged failure to comply with the so-ordered [*2]stipulation.

Accordingly, the judgment is reversed, so much of the order entered May 14, 2012 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.