[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5 [a], [b]; see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507 [1st Dept 2021]).

As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215 [f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).

Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215 [f]; see generally Pryor v New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). Concur—Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ.

Index No. 160339/2020

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber and Lindsay A. Padover of counsel), for plaintiff.

Samandarov & Associates, P.C., Floral Park, NY (David M. Gottlieb of counsel), for defendant Quality Ortho Complete Joint Care, P.C.

In this no-fault insurance coverage action, plaintiff, Unitrin Safeguard Insurance Company, moves for default judgment under CPLR 3215 against no-fault claimants Oscar Galeas and Jairo Ruales. Unitrin also moves for default judgment against a number of medical providers who are benefits assignees of Galeas and Ruales (or assignees of two other defendants, no-fault claimants Milton Parra and Daniel Espinoza).^[FN1] Answering defendant Quality Ortho Complete Joint Care, P.C., cross-moves to dismiss under CPLR 3215 (c) and CPLR 3211 (a) (4).

Unitrin’s motion for default judgment is granted without opposition. Quality Ortho’s cross-motion to dismiss Unitrin’s claims against it is granted only to the extent of directing consolidation of this action with the parallel action brought by Unitrin against Quality Ortho.

With respect to Unitrin’s default-judgment motion, Unitrin has sufficiently established service on the defendants that are the subject of its motion, and those defendants’ defaults. And the affidavit of Unitrin’s no-fault claims representative (as supported by the accompanying police report) shows that Unitrin had a founded belief that the claimants’ injuries (and ensuing benefits claims for medical treatment) did not arise from a covered collision. (See NYSCEF Nos. 52-53.) Unitrin is therefore entitled to default judgment against these defendants.

Quality Ortho’s cross-motion to dismiss is based on two independent grounds. Quality Ortho contends first that Unitrin’s action must be dismissed as against it under CPLR 3215 (c) because Unitrin failed to take proceedings for the entry of default judgment against other defendants within one year of those defendants’ defaults. But it is undisputed that Quality Ortho timely answered.^[FN2] This court sees no basis on which Quality Ortho—as opposed to a different, defaulting defendant—may even seek dismissal under CPLR 3215 of Unitrin’s claims against it.^[FN3] Nor does Quality Ortho supply any authority for the proposition that a plaintiff’s failure to seek default judgment within a year against a defaulting defendant requires dismissal of the plaintiff’s claims as against a different, answering defendant. In any event, this court concludes that given the numerous defendants in the action, Unitrin’s active prosecution of its claims against some of the defendants, and its active settlement negotiations with other defendants, Unitrin has established good cause for its brief delay in bringing this motion for default judgment. (See NYSCEF No. 51 at &para 32.) The court declines to dismiss Unitrin’s claims against Quality Ortho on this ground.

Quality Ortho also argues that Unitrin’s claims against it must be dismissed under CPLR 3211 (a) (4). Quality Ortho contends that Unitrin’s claims here impermissibly duplicate claims asserted in a de novo challenge to an arbitration award, also pending in Supreme Court, New [*2]York County.^[FN4] This court is unpersuaded that Unitrin’s claims against Quality Ortho in this action should be dismissed. Unitrin filed this action 10 months before the parallel de novo action, seeking broader relief against more parties; and this action has progressed materially farther (including through the assignment of the undersigned pursuant to Unitrin’s RJI). Dismissal of Unitrin’s claims against Quality Ortho here would be inappropriate under the first-in-time rule that generally governs motions to dismiss under CPLR 311 (a) (4).^[FN5] (See National Union Fire Ins. Co. of Pittsburgh, Pa. v Jordache Enters., 205 AD2d 341, 343 [1st Dept 1994].)

At the same time, it is undisputed that the two actions each feature Unitrin as the plaintiff and Quality Ortho as a defendant and involve closely overlapping questions of fact and law, such that leaving the two actions to run along separate, parallel tracks could lead to needless duplication of judicial effort and inconsistent results. This court holds that the de novo action, Index No. 158403/2021, should be consolidated into this action under CPLR 3211 (a) (4) and CPLR 602.^[FN6]

Settle Order.

Footnotes

Footnote 1:Unitrin represents that defendants Parra and Espinoza have not yet been located for purposes of service. (See NYSCEF No. 51 at 2 n 1.)

Footnote 2:Indeed, Unitrin acknowledges this timely answer in explaining why its motion does not seek default judgment against Quality Ortho. (See NYSCEF No. 51 at 2 n 1.)

Footnote 3:To be clear, Quality Ortho may, under the language of CPLR 2215, cross-move against Unitrin although it was not a subject of Unitrin’s initial motion. This court holds only that Quality Ortho may not cross-move to dismiss under CPLR 3215 (c) when it did not default.

Footnote 4:See Unitrin Safeguard Insurance Company v Quality Orthopedics & Complete Joint Care, PC, Index No. 158403/2021 (Sup Ct, NY County).

Footnote 5:Quality Ortho has not moved to dismiss under CPLR 3211 (a) (4) in the parallel de novo action.

Footnote 6:This court may properly order consolidation sua sponte in the exercise of its authority under CPLR 3211 (a) (4) to “make such order as justice requires.” Thus, for example, in John J. Campagna, Jr., Inc. v Dune Alpin Farm Assocs. (81 AD2d 633, 634 [2d Dept 1981]), the Appellate Division, Second Department held that the motion court properly applied the first-in-time rule in denying dismissal under CPLR 3211 (a) (4). But the Second Department went on to hold that “to best serve the interests of judicial economy while still preserving the rights of the parties, the [motion] court should have sua sponte ordered consolidation of these actions,” and itself directed consolidation on appeal. (Id.)

Decided on June 17, 2022

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered April 1, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant established, prima facie, that initial and follow-up letters scheduling an EUO were timely and properly mailed in accordance with defendant’s standard office practices and procedures, as plaintiff’s assignor’s sworn statement confirmed that the address used by defendant was the proper address and neither plaintiff nor its assignor disputed assignor’s receipt of the letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, defendant established, prima facie, that plaintiff’s assignor failed to appear on either of the scheduled dates (see Celestin v 40 Empire Blvd., Inc., 168 AD3d 805 [2019]) and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

Accordingly, the order is affirmed.

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

Decided on June 17, 2022

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated March 12, 2021. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for services billed using CPT codes 97810 and 97811, and denied the branch of plaintiff’s cross motion seeking summary judgment.

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 branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for services billed using CPT codes 97810 and 97811 on the ground that defendant had paid these claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, and denied the branch of plaintiff’s cross motion seeking summary judgment.

For the reasons stated in Mind & Body Acupuncture, P.C., as Assignee of Wilson, Bernadette v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1418 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Zaklukiewicz, Puzo & Morrissey, LLP (William E. Morrissey, Jr. of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated February 25, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

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

In support of its motion, defendant submitted an affidavit and documentary evidence which established, prima facie, its lack of coverage defense (see Tam Med. Supply Corp. v Omni Indem. Co., 48 Misc 3d 142[A], 2015 NY Slip Op 51294[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Vincent Med. Servs., P.C. v Omni Indem. Co., 42 Misc 3d 142[A], 2014 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff failed to demonstrate the existence of a triable issue of fact, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated March 22, 2021. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for services billed using CPT codes 97810 and 97811, and for services performed on or after August 10, 2016, and denied the branch of plaintiff’s cross motion seeking summary judgment.

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 so much of the complaint as sought to recover on plaintiff’s claims for services billed using CPT codes 97810 and 97811 on the ground that defendant had paid these claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, and so much of the complaint as sought to recover on plaintiff’s claims for services performed on or after August 10, 2016 on the ground of lack of medical necessity, and denied the branch of plaintiff’s cross motion seeking summary judgment.

Contrary to plaintiff’s contention, the affidavit plaintiff submitted in opposition to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for services rendered on or after August 10, 2016 failed to raise a triable issue of fact as it did not meaningfully refer to, let alone rebut, defendant’s prima facie showing of lack of medical necessity (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2009]).

To the extent plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for acupuncture services billed using CPT codes 97810 and 97811, for the reasons stated in Mind & Body Acupuncture, P.C., as Assignee of Wilson, Bernadette v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1418 K C], decided herewith), plaintiff’s contention lacks merit.

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

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

Decided on June 17, 2022

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated March 3, 2021. The order, insofar as appealed from, upon reargument, adhered to that court’s prior determination in an order dated March 16, 2020 granting the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims billed using CPT codes 97810 and 97811.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order dated March 16, 2020, the Civil Court denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims billed using CPT codes 97810 and 97811 on the ground that defendant had paid these claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Plaintiff thereafter moved to renew and reargue its motion for summary judgment and its opposition to defendant’s cross motion. Plaintiff appeals from so much of an order of the Civil Court dated March 3, 2021 as, upon reargument, adhered to the court’s prior determination in the March 16, 2020 order denying plaintiff’s motion for summary judgment and granting the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims billed using CPT codes 97810 and 97811.

For the reasons stated in Mind & Body Acupuncture, P.C., as Assignee of Wilson, Bernadette v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1418 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Daniel Passer and Kyeko Stewart of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated September 10, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Although defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the EUOs. In addition, defendant’s motion failed to establish, as a matter of law, that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at two duly scheduled EUOs. Therefore, defendant failed to establish its entitlement to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Finally, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish that defendant failed to deny the claim within the 30-day period (see Viviane Etienne Med. Care, P.C. v [*2]Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see 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 motion for summary judgment dismissing the complaint is denied.

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

Decided on June 17, 2022

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

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe 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 (Jill R. Epstein, J.), dated December 4, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

ORDERED that the order is reversed, with $30 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 an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs) and, upon a search of the record, granted summary judgment to plaintiff.

A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint demonstrated that defendant’s initial and follow-up letters scheduling the EUOs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123). As plaintiff’s opposition papers failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

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

Law Offices of Buratti, Rothenberg & Burns (Rachel L. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova and Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking 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 of the Civil Court as denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Insofar as relevant to this appeal, in support of its motion, defendant submitted an affidavit by the Director of Operations for Exam Coordinators Network, which had been retained by defendant to schedule IMEs of plaintiff’s assignor, which affidavit sufficiently demonstrated that the IME scheduling letters had been timely mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage (id. at 722). As defendant’s motion further demonstrated that defendant timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, defendant demonstrated, prima facie, its entitlement to summary judgment and plaintiff failed to raise a triable issue of fact in opposition. [*2]Contrary to the determination of the Civil Court, as the IMEs were scheduled before defendant received the claim at issue, defendant was not required to comply with the obligations of 11 NYCRR 65-3.6 (b) (see City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).

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

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