SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 21, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant’s motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.

Next, plaintiff correctly argues that defendant could not rely on defendant’s denial of claim forms “for the purposes of asserting the information contained within them,” such as “the dates of services, the services performed, the fees charged per service provided, etc.” However, defendant was not relying on them for that purpose. It is plaintiff’s burden, not defendant’s, to prove the elements of plaintiff’s cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire [*2]Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility (see Five Boro Psychological Servs., P.C., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U]; Quality Health Prods., Inc., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U]).

In view of the foregoing, and as plaintiff’s remaining contentions similarly lack merit (see Alfa Med. Supplies v Progressive Northeastern Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51733[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Terence C. O’Connor, J.), entered March 19, 2010. The order conditionally granted plaintiff’s motion for leave to enter a default judgment only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment in the amount demanded in the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff’s motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.

In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, plaintiff’s motion papers did not demonstrate plaintiff’s entitlement to have its motion for leave to enter a default judgment granted unconditionally.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 11, 2010. The order conditionally granted plaintiff’s motion for leave to enter a default judgment only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment in the amount demanded in the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff’s motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.

In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, plaintiff’s motion papers did not demonstrate plaintiff’s entitlement to have its motion for leave enter a default judgment granted unconditionally.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 11, 2010. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint as to claims that were denied based upon a lack of medical necessity for the services rendered.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. In opposition to defendant’s motion, plaintiff submitted, among other things, an affidavit executed by the treating chiropractor. The Civil Court granted defendant’s motion as to some of the claims at issue, and denied defendant’s motion as to claims that were denied based upon a lack of medical necessity for the services rendered, finding a triable issue of fact as to those claims. Defendant appeals from the partial denial of its motion for summary judgment.

Inasmuch as the affidavit of plaintiff’s treating provider raised a triable issue of fact in opposition to defendant’s prima facie showing, the order, insofar as appealed from, is affirmed (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 6, 2009. The order denied defendant’s motion, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned.

ORDERED that the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant failed to timely appear in the action. After more than a year had elapsed, defendant served an answer together with discovery demands on plaintiff and filed the answer with the court. About a week later, defendant served and filed an amended answer. At the same time, defendant moved, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned. The Civil Court denied defendant’s motion, holding that, by serving its answer, defendant had appeared in the action and had waived its entitlement to such relief.

CPLR 3215 (c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” CPLR 3215 (c) applies where a defendant has not served an answer or taken any other steps which may be viewed as a formal or informal appearance (see Myers v Slutsky, 139 AD2d 709 [1988]). However, a defendant’s submission of an answer and service of discovery demands act as a waiver of any right the defendant may have to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d at 710). In view of the foregoing, the Civil Court properly denied defendant’s motion to dismiss the complaint as [*2]abandoned pursuant to CPLR 3215 (c).

Pesce, P.J., and Weston, J., concur.

Golia, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and GOLIA, JJ.
AVIR SURGICAL SUPPLIES, INC.
as Assignee of CIGDEM DEMIRKAN,

Respondent,

-against-

NO. 2010-344 Q C

DECIDED
WINDSOR GROUP INSURANCE COMPANY,

Appellant.
Golia, J., dissents and votes to modify the order to provide that defendant’s motion to dismiss the complaint as abandoned is denied as academic and the complaint is dismissed nunc pro tunc pursuant to CPLR 3215 (c).

This action was commenced by plaintiff in 2004. Defendant failed to appear in this action or file an answer to the complaint. Therefore, pursuant to CPLR 3215 (c), plaintiff’s time to enter a default judgment against defendant expired in 2005.

CPLR 3215 (c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment
but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.”

Although not specifically noted in the majority’s decision, which simply states that, “After more than a year had elapsed . . . ,” there was absolutely no activity in this case from 2004 until 2009, when defendant served its answer with affirmative defenses and discovery demands. Within a week of filing its initial answer, defendant filed an amended answer as of right, adding the affirmative defense of CPLR 3215 (c), along with a motion to dismiss pursuant to that section. It is important to note plaintiff did not submit opposing papers to defendant’s motion to [*3]dismiss.

The Civil Court, however, never complied with the requirements of CPLR 3215 (c), not for one year or two years or even three years. That court allowed this case to languish for approximately five years, a total lapse in and of itself, when it should have dismissed this case after one year.

I am not unmindful of the cases cited by the majority, but I find that this defendant, unlike its counterparts in those cases cited, did not waive its rights under CPLR 3215 (c) by any participation in the case. It did not engage in any exchange of discovery, did not engage in any settlement conference, and did not exchange any communication. There is absolutely no indication that plaintiff has shown any prejudice or “sufficient cause . . . why the complaint should not be dismissed,” especially in view of its default below in failing to submit opposing papers. Here, the only action that plaintiff took was to serve the complaint.

Indeed, this plaintiff has failed to raise any argument as to why the case should not be dismissed pursuant to CPLR 3215 (c), except for arguing that defendant filed an answer along with its motion to dismiss and therefore waived its right to dismiss under CPLR 3215 (c), when plaintiff itself is the defaulting party.

It would be inappropriate to allow this plaintiff, which defaulted below, to prosecute a case that should have been dismissed years earlier simply because after five years defendant submitted an answer along with its motion to dismiss. Accordingly, I vote to modify the order to provide that defendant’s motion to dismiss the complaint as abandoned is denied as academic inasmuch as the underlying complaint should have been dismissed pursuant to CPLR 3215 (c), and I would remit the matter to the Civil Court to dismiss the complaint in accordance with my decision.
Decision Date: July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 10, 2009, deemed from a judgment of the same court entered December 28, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 10, 2009 order granting the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third cause of action and so much of the first cause of action as sought to recover the principal sum of $59.96, and granting defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action, awarded plaintiff the principal sum of $1,777.96.

ORDERED that the judgment is reversed, without costs, so much of the order entered December 10, 2009 as granted the branches of plaintiff’s motion seeking summary judgment upon its second and third causes of action and upon the portion of its first cause of action that sought to recover the principal sum of $59.96, and as granted defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action is vacated, plaintiff’s motion for summary judgment is denied in its entirety and defendant’s cross motion for summary judgment dismissing the complaint is granted in its entirety.

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 awarded plaintiff summary judgment upon its second and third causes of action, and, upon the first cause of action, awarded plaintiff only the sum of $59.96. [*2]The Civil Court also granted only so much of defendant’s cross motion for summary judgment as sought to dismiss the remainder of plaintiff’s first cause of action. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its cross motion, defendant submitted an affidavit of an employee of the corporation which had mailed independent medical examination (IME) scheduling letters on defendant’s behalf, which sufficiently established that IME requests had been timely mailed in accordance with that corporation’s standard office practices and procedures (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 an affidavit from the receptionist of the doctor who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, affidavits executed by defendant’s employees demonstrated that the claim denial forms, based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant is entitled to summary judgment dismissing plaintiff’s second and third causes of action (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

While the court awarded plaintiff the sum of $59.96 upon its first cause of action and dismissed the remaining portion of this cause of action based upon the workers’ compensation fee schedule, since the record demonstrates that defendant had previously timely paid this amount to plaintiff (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), defendant was entitled to summary judgment dismissing this portion of plaintiff’s first cause of action.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon its second and third causes of action and upon the portion of its first cause that sought to recover the sum of $59.96, and as granted defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action is vacated, plaintiff’s motion for summary judgment is denied in its entirety and defendant’s cross motion for summary judgment dismissing the complaint is granted in its entirety.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 18, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted so much of defendant’s motion for discovery as related to plaintiff’s current corporate status.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking discovery related to plaintiff’s current corporate status is denied; as so modified, the order, insofar as appealed from, 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 moved to, among other things, compel plaintiff to provide discovery. The Civil Court, insofar as is relevant to this appeal, denied plaintiff’s motion for summary judgment on the ground that plaintiff had failed to demonstrate its prima facie entitlement to judgment as a matter of law, and granted the branch of defendant’s motion seeking to compel plaintiff to provide discovery regarding plaintiff’s “current legal/corporate status.”

A no-fault provider establishes its prima facie entitlement to summary judgment by proof [*2]of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). In this case, the Civil Court found, among other things, that plaintiff had failed to establish its prima facie entitlement to summary judgment. As plaintiff does not address that finding on appeal, we decline to disturb the Civil Court’s denial of plaintiff’s motion for summary judgment.

We further find that defendant has not demonstrated that discovery on the issue of plaintiff’s current corporate status is material and necessary to its defense of this action (see CPLR 3101). Plaintiff, as a “professional service limited liability company” (Limited Liability Company Law § 1201 [f]), could render professional services only through individuals authorized by law to render such professional services (Limited Liability Company Law § 1204 [a]). The medical license of plaintiff’s sole member, Alexander Braver, was suspended in 2007, rendering him legally disqualified from practicing medicine within the state and disqualifying him from continuing as a member of plaintiff (see Limited Liability Company Law § 1209). Dissolution occurred on the effective date of the suspension of Braver’s medical license since, at that point, there were no remaining members of the professional service limited liability company (see Limited Liability Company Law § 701 [a] [4] [a “limited liability company is dissolved and its affairs shall be wound up . . . at any time there are no members”]). Since Braver was the sole member of such company, he may wind up the professional service limited liability company’s affairs by, among other things, prosecuting and/or defending an action on behalf of the professional service limited liability company (see A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]).

In view of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking discovery related to plaintiff’s current corporate status is denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 16, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 appeals from so much of an order as denied its motion for summary judgment dismissing the complaint based on a finding that defendant had failed to establish that plaintiff did not comply with defendant’s requests for verification.

Contrary to plaintiff’s contention, the affidavit of defendant’s litigation examiner, submitted in support of defendant’s motion, established that defendant had timely mailed its requests and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to provide the MRI films which, among other things, defendant’s requests for verification had sought. As plaintiff’s opposing papers failed to address defendant’s requests for the assignor’s MRI films, plaintiff did not demonstrate that it had provided defendant, prior to commencement of the action, with the verification requested. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not commence to run and plaintiff’s action is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; 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 defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2010. The order denied defendant’s motion to vacate a default judgment and dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to vacate the default judgment and dismiss the complaint is granted.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment and dismiss the complaint.

It is “axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Elm Mgt. Corp. v Sprung, 33 AD3d 753, 755 [2006], quoting McMullen v Arnone, 79 AD2d 496, 499 [1981] [internal quotation marks omitted]; see Matter of Cartier v County of Nassau, 281 AD2d 477, 478 [2001]). Under CPLR 5015 (a) (4), a default judgment must be vacated once a movant demonstrates a lack of personal jurisdiction (see Citibank v Keller, 133 AD2d 63, 64-65 [1987]; see also Harkless v Reid, 23 AD3d 622, 622-623 [2005]; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]). Here, the process server served the summons and complaint upon a clerk employed by defendant’s third-party claims administrator, and the record is devoid of any showing that he was an officer, director, managing agent, cashier, or an agent authorized by appointment to accept service on defendant’s behalf (see CPLR 311 [a] [1]; Covillion v Tri State Serv. Co., Inc., 48 AD3d 399, 400 [2008]; Gleizer v American Airlines, Inc., 30 AD3d 376 [2006]).

Accordingly, the Civil Court never obtained jurisdiction over defendant and should have granted defendant’s motion to vacate the default judgment and dismiss the complaint.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: July 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 18, 2009, deemed from a judgment of the same court entered February 18, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 18, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $568.10.

ORDERED that the judgment is reversed, without costs, the order entered December 18, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had properly reimbursed plaintiff for services rendered by plaintiff’s licensed acupuncturist to plaintiff’s assignor. By order dated December 18, 2009, the Civil Court granted plaintiff’s motion for summary judgment, awarding plaintiff the principal sum of $568.10, and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant filed a notice of appeal from the order. A judgment awarding plaintiff the principal sum of $568.10 was subsequently entered on February 18, 2010, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Subsequent to the entry of the judgment, plaintiff, upon discovering a mathematical error, plaintiff moved to reduce the sum awarded in the December 18, 2009 order to $169.24. By order entered April 28, 2010, the Civil Court (Carmen R. Velasquez, J.) granted that motion. Contrary to plaintiff’s contention on appeal, the entry of the April 28, 2010 order did not affect the appeal from the judgment, which was entered pursuant to the December 18, 2009 order, and has not been amended. We note that the April 28, 2010 order modified the December 18, 2009 order only to the extent of changing the sum awarded. It did not affect the Civil Court’s findings of liability as a matter of law, which are the subject of defendant’s appeal. [*2]

We find that defendant’s cross motion for summary judgment dismissing the complaint should have been granted, as it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for services rendered by a licensed acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party’s attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.

Accordingly, the judgment is reversed, the order entered December 18, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 25, 2011