Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 14, 2018. The order denied defendant’s motion to vacate a judgment of that court entered March 13, 2017 upon defendant’s failure to appear or answer the complaint and, in effect, to extend defendant’s time to answer and direct plaintiff to accept a corrected answer.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff served the summons and complaint on defendant on October 31, 2016. A default judgment was entered on March 13, 2017 based on defendant’s failure to answer the complaint or otherwise appear in the action. In December 2017, defendant moved to vacate the default judgment, arguing that it had timely answered the complaint, albeit with the wrong index number, and annexing an affidavit of service which demonstrated that defendant had served that answer on November 30, 2016. Defendant further contended that it had potentially meritorious defenses to the action, in that the provided services lacked medical necessity and the limits of the insurance policy had been exhausted. In opposition, plaintiff annexed a letter dated December 9, 2016 [*2]from its attorney’s office rejecting defendant’s answer because the answer contained the wrong index number. Plaintiff asserted that defendant had not submitted a new answer with the corrected index number until December 13, 2017. Plaintiff also argued that defendant had failed to assert a potentially meritorious defense, and that, as a result, the default judgment should not be vacated. By order entered November 14, 2018, the Civil Court denied defendant’s motion, finding that defendant had not proffered a reasonable excuse for failing to timely interpose an answer.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay” in answering the complaint (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Gately v Drummond, 161 AD3d 947 [2018]; Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907, 908 [2015]).

Upon the record presented, we agree with the Civil Court that defendant failed to explain why defendant had waited a year after its initial answer was rejected before serving a new answer bearing the correct index number. Consequently, we find that defendant failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether defendant offered a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]).

Accordingly, the order is affirmed.

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

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Naita A. Semaj, J.), entered April 2, 2019, that denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Naita A. Semaj, J.), entered April 2, 2019, insofar as appealed from, reversed, without costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the underlying first-party no-fault action. The proof submitted by defendant, including the affirmed peer review report of its physician, set forth a factual basis and medical rationale for the conclusion that the medical supplies plaintiff provided to its assignor, including a portable whirlpool, heat lamp and massager, were not medically necessary (see Triangle R Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). The report explained that the assignor was already receiving physical, acupuncture and chiropractic therapy for her injuries and that the equipment at issue was either unnecessary or redundant (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [App Term, 1st Dept 2010]).

Plaintiff’s opposition, consisting of an attorney’s affirmation, prescription and various claim forms, was unaccompanied by any medical evidence or other competent proof of medical necessity, and failed to raise a triable issue (see TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; Karina K. Acupuncture, P.C. v AIG Centennial Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50415[U] [App Term, 1st Dept 2016]; Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U] [App Term, 1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on February 14, 2020

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 25, 2018. The order granted defendant’s motion, pursuant to, among other things, CPLR 3211 (a) (8), to dismiss the complaint for lack of personal jurisdiction 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, defendant moved, pursuant to, among other things, CPLR 3211 (a) (8), to dismiss the complaint. Plaintiff opposed defendant’s motion and “cross-moved” for summary judgment. In support of its motion, defendant alleged, among other things, that it conducts no business in the State of New York, including that it does not issue insurance policies here and has no sales representative or agent within the State, and is not licensed to transact business within the State of New York. In an order entered June 25, 2018, defendant’s motion was granted and plaintiff’s cross motion was denied.

Upon defendant’s prima facie showing that the Civil Court lacked personal jurisdiction over this nonresident on the ground that there was no jurisdictional basis for suit in the Civil Court of the City of New York (see CCA 404), the burden shifted to plaintiff, which purported to have effectuated service by mail to the out-of-state defendant, to establish that it had a jurisdictional basis for the service, as plaintiff “carries the ultimate burden of proof on that issue” [*2](Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; see also Sanchez v Major, 289 AD2d 320 [2001]; Brandt v Toraby, 273 AD2d 429 [2000]; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In determining whether a plaintiff has met its burden, a court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to plaintiff, and must resolve all doubts in favor of jurisdiction (see Brandt, 273 AD2d at 430). Here, plaintiff failed to meet its burden. Plaintiff’s opposition papers consisted only of the affidavit of its owner attesting to the mailing policies and procedures of plaintiff, and the affirmation of its counsel, who had no personal knowledge of the underlying facts (see Carte v Parkoff, 152 AD2d 615 [1989]). Plaintiff failed to produce evidence showing a jurisdictional basis for the service (see CCA 404; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]; see also Matter of Hereford Ins. Co. v American Ind. Ins., 136 AD3d 551 [2016]).

In view of the foregoing, we do not consider plaintiff’s other arguments.

Accordingly, the order is affirmed.

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

Law Office of David O’Connor, P.C. (David O’Connor 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, Queens County (Phillip Hom, J.), entered July 3, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.

“[A] court ‘ha[s] no power whatsoever’ to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a [notice of trial]” (Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 [2013], quoting Hodge v New York City Tr. Auth., 273 AD2d 42, 43 [2000]; see also Chase v Scavuzzo, 87 NY2d 228 [1995]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and “the doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b)” (Arroyo, 110 AD3d at 20; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]). As defendant does not claim to have served a demand pursuant to CPLR 3216, it was error for the Civil Court to grant the branch of defendant’s motion seeking to dismiss the complaint based on laches.

In light of this court’s determination, the matter must be remitted to the Civil Court for a determination of the remaining branches of defendant’s motion, as they are no longer moot.

Accordingly, the order is reversed, the branch of defendant’s motion seeking to dismiss [*2]the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

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

[*1]

Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for plaintiffs-appellants.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered April 24, 2019. The order denied plaintiffs’ motions for leave to renew their motions seeking summary judgment.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motions for leave to renew are granted and, upon renewal, the motions for summary judgment are granted, and judgment is granted in favor of plaintiffs as follows:

It is adjudged and declared that plaintiffs are under no obligation to pay or reimburse any of the subject claims.

Memorandum: Defendants are medical professional corporations that were assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendants submitted bills for the services they purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (Nationwide plaintiffs) seeking reimbursement pursuant to the No-Fault Law and regulations (see Insurance Law art 51; 11 NYCRR part 65). The Nationwide plaintiffs commenced these declaratory judgment actions after defendants failed to appear at requested examinations under oath (EUOs), alleging that each defendant had breached a material condition precedent necessary to coverage. The Nationwide plaintiffs then moved in both actions for summary judgment declaring that, as a result of such breach, they were under no obligation to pay or reimburse any of the subject claims. Supreme Court denied the motions without prejudice to renew upon completion of discovery. After the Nationwide plaintiffs moved for leave to renew those motions and defendants filed opposition thereto, we issued a decision on an appeal in a related case in which we held that a defense based on nonappearance at an EUO is subject to the preclusion remedy and that, therefore, the Nationwide plaintiffs were required to establish that they issued timely denials on that ground (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192, 198 [4th Dept 2018] [Jamaica Wellness]). The Nationwide plaintiffs were thus limited to raising that decision in their reply papers, and the court denied the motions. Thereafter, the Nationwide plaintiffs moved for leave to renew the motions pursuant to CPLR 2221 (e) in light of our intervening decision in Jamaica Wellness and submitted, inter alia, a detailed affidavit of a claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. The court denied the motions for leave to renew, and the Nationwide plaintiffs now appeal.

We agree with the Nationwide plaintiffs that the court abused its discretion in denying the motions for leave to renew. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221 [e] [2]). “Although a court has discretion to ‘grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ . . . , it may not exercise that discretion unless the movant establishes a ‘reasonable justification for the failure to present such facts on the prior motion’ ” (Robinson v Consolidated Rail Corp., 8 AD3d 1080, 1080 [4th Dept 2004]; see CPLR 2221 [e] [3]). Here, to establish their entitlement to summary judgment by making the requisite showing with respect to their defense to payment of the subject claims based upon defendants’ nonappearance at the EUOs, the Nationwide plaintiffs submitted facts that were known to them but not offered on the prior motions for summary judgment (see CPLR 2221 [e] [2]). The Nationwide plaintiffs also established a reasonable justification for failing to present such facts on the prior motions inasmuch as this Court, in our intervening decision in Jamaica Wellness, held for the first time and in contrast to established precedent in another department that the defense based on nonappearance at an EUO is subject to the preclusion remedy and, therefore, that an insurance carrier seeking a declaration that it is not obligated to pay claims due to such nonappearance must establish, inter alia, that it issued timely and proper denials (167 AD3d at 197-198; see generally Foxworth v Jenkins, 60 AD3d 1306, 1307 [4th Dept 2009]).

We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Upon our review of the record, we conclude that the Nationwide plaintiffs met their burden as movants and that defendants failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175 AD3d 1836, 1837 [4th Dept 2019]). Present—halen, P.J., Peradotto, Troutman and Bannister, JJ.

[*1]

Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for plaintiffs-appellants.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered March 29, 2019. The order denied plaintiffs’ motion for summary judgment and granted in part defendant’s cross motion to compel discovery.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the cross motion is dismissed, and judgment is granted in favor of plaintiffs as follows:

It is adjudged and declared that plaintiffs are under no obligation to pay or reimburse any of the subject claims.

Memorandum: As we explained in a prior appeal (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]), defendant is a medical professional corporation that was assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendant submitted bills for the services it purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (Nationwide plaintiffs) seeking reimbursement pursuant to the No-Fault Law and regulations (see Insurance Law art 51; 11 NYCRR part 65). The Nationwide plaintiffs commenced this declaratory judgment action after defendant failed to appear at repeatedly requested examinations under oath (EUOs), alleging that defendant had breached a material condition precedent necessary to coverage. The Nationwide plaintiffs then moved for summary judgment declaring that, as a result of such breach, they were under no obligation to pay or reimburse any of the subject claims. Supreme Court granted the motion, declared, among other things, that defendant breached a condition precedent to coverage by failing to appear at the scheduled EUOs, and determined that the Nationwide plaintiffs therefore had the right to deny all claims retroactively to the date of loss, regardless of whether they had issued timely denials.

We reversed the judgment insofar as appealed from, denied the Nationwide plaintiffs’ motion, and vacated the declarations. We held that a defense based on nonappearance at an EUO is subject to the preclusion remedy and that, therefore, the Nationwide plaintiffs were required to establish that they issued timely denials on that ground. We determined that the Nationwide plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage inasmuch as the assertions in the affidavit of their claims specialist that they issued timely denial forms to defendant for nonappearance at the EUOs were conclusory and unsupported by any such denial forms (Nationwide Affinity Ins. Co. of Am., 167 AD3d at 198).

The Nationwide plaintiffs subsequently filed a second motion for summary judgment on the complaint and submitted, inter alia, a detailed affidavit of the claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. Defendant cross-moved pursuant to CPLR 3124 to compel discovery. Supreme Court denied the motion on the ground that it was an improper successive motion for summary judgment and granted in part the cross motion. The Nationwide plaintiffs now appeal.

We agree with the Nationwide plaintiffs that the court erred in refusing to entertain their second summary judgment motion. “Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause . . . , neither Supreme Court nor this Court is precluded from addressing the merits of such a motion” (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]; see Putrelo Constr. Co. v Town of Marcy, 137 AD3d 1591, 1593 [4th Dept 2016]). Here, our intervening decision in the prior appeal, which clarified that the defense based on nonappearance at an EUO is subject to the preclusion remedy and that the Nationwide plaintiffs were therefore required to establish that they issued timely denials on that ground, constitutes sufficient cause to entertain the motion (see Pludeman v Northern Leasing Sys., Inc., 106 AD3d 612, 616 [1st Dept 2013]).

We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Contrary to defendant’s contentions, we conclude upon our review of the record that the Nationwide plaintiffs met their burden as movant and that defendant failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175 AD3d 1836, 1837 [4th Dept 2019]). In addition, defendant’s “ ’mere hope or speculation’ that further discovery will lead to evidence sufficient to defeat [the Nationwide plaintiffs’] motion is insufficient to warrant denial thereof” (Kaufmann’s Carousel, Inc. v Carousel Ctr. Co. LP, 87 AD3d 1343, 1345 [4th Dept 2011], lv dismissed 18 NY3d 975 [2012], rearg denied 19 NY3d 938 [2012]; see Austin v CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 AD3d 1298, 1301 [4th Dept 2014]; see generally CPLR 3212 [f]). In light of our determination, defendant’s cross motion to compel discovery is dismissed as moot (see Clark C.B. v Fuller, 59 AD3d 1030, 1031 [4th Dept 2009]). We therefore reverse the order by granting the motion, dismissing the cross motion, and granting judgment in favor of the Nationwide plaintiffs declaring that they are under no obligation to pay or reimburse any of the subject claims. Present—Whalen, P.J., Peradotto, Troutman and Bannister, JJ.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 12, 2018. The order denied defendant’s motion to consolidate four other actions pending before that court with the instant action and, upon consolidation, to compel the Clerk of the Civil Court to, in effect, deem the notice of appeal filed in the instant action to be a notice of appeal of the consolidated action and to accept an undertaking in the consolidated action.

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. After issue was joined, defendant moved for an order, pursuant to CPLR 602 (a), to consolidate the present action with four other actions pending before the court and, upon consolidation, to, in effect, open its defaults in appearing at trial. By order entered May 8, 2018, the Civil Court denied the branch of defendant’s motion seeking to, in effect, open its defaults and did not reach the branch seeking consolidation of the actions. Defendant has separately appealed from the May 8, 2018 order (see Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez v Global Liberty Ins. Co. of NY, ___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-1857 K C], decided herewith). On that appeal, defendant proffered an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual Chiropractic, P.C.” seeking no-fault benefits as assignee of Ruben Rodriguez pertaining to the same accident and under the same claim number as those at bar are “permanently stayed.” This court is dismissing that appeal on the ground that any determination therein would not, under the facts therein, have a direct effect upon the parties.

The instant appeal concerns a motion made by defendant in June 2018, pursuant to CPLR [*2]602 (a), to consolidate the present action with four other actions and, upon consolidation, “to have the Clerk of the Civil Court . . . County of Kings, compelled to deem the appeal [of the instant action] . . . to be an appeal of the within joined actions” and to accept an undertaking pertaining to all of the actions. Plaintiff opposed the motion. Defendant appeals from an order of the Civil Court entered December 12, 2018 denying defendant’s motion.

In view of the dismissal of the appeal in Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez v Global Liberty Ins. Co. of NY, ___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-1857 K C], decided herewith), this action is no longer a viable pending action with which to consolidate any other actions.

Accordingly, the appeal is dismissed.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 8, 2018. The order denied the branch of defendant’s motion seeking to, in effect, open its default in appearing for trial.

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover assigned first-party no-fault benefits as assignee of Ruben Rodriguez, who was allegedly injured in a motor vehicle accident on December 5, 2013. After issue was joined, counsel from The Law Office of Jason Tenenbaum appeared for defendant for trial, but was told by the Civil Court that his office was not counsel of record, and the matter was adjourned. On the adjourned date, April 20, 2017, the court granted plaintiff’s application to mark the case “inquest clerk” and hold defendant in default. By order to show cause dated May 12, 2017, defendant moved to consolidate the present action with four other actions pending in the Civil Court and, upon consolidation, to, in effect, open its defaults in appearing for trial. Defendant supported the motion with a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C., as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court denied the branch of defendant’s unopposed motion seeking to, in effect, open its defaults in appearing for trial, finding that defendant had failed to proffer a reasonable excuse for the failure by its incoming counsel to provide “proper proof of its legal representation of defendant.” The Civil Court did not reach the branch of defendant’s motion seeking, pursuant to CPLR 602 (a), consolidation.

On the instant appeal, defendant has annexed to its brief an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual [*2]Chiropractic, P.C.” seeking no-fault benefits under the same claim number and regarding the same assignor and motor vehicle accident as in the case at bar are permanently stayed. As a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, in the interest of judicial economy, takes judicial notice of the Supreme Court’s order entered February 9, 2018, which permanently “stays” the parties from proceeding further in the action at bar.

In light of the stay issued by the Supreme Court, this appeal has “been rendered academic as any determination on [this] appeal[ ] would not, under the facts of this case, have a direct effect upon the parties” (Matter of Claudia G. [Ermelio G.], 71 AD3d 894, 895 [2010]).

Accordingly, the appeal is dismissed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Mccormack & Mattei, P.C. (Jamila Shukry and Erin O’Neill of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 7, 2018. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue, and implicitly denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground, among others, that plaintiff lacked standing to bring the action because it did not possess a license to distribute the products at issue. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered February 7, 2018, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked standing to bring the action, and implicitly denied plaintiff’s cross motion. The court stated that defendant’s licensing defense is not precludable and noted that, in two separate orders in a declaratory judgment action, the Supreme Court, Nassau County, had found that plaintiff herein lacked a license to distribute its products. The Civil Court did not reach the remaining branches of defendant’s motion, which sought summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath and that the limits of the insurance policy had been exhausted.

“The proponent of a summary judgment motion must make a prima facie showing of [*2]entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In an affidavit in support of the branch of defendant’s motion seeking summary judgment on the ground that plaintiff lacked the required license to distribute the supplies at issue, defendant’s medical investigator admitted that plaintiff had obtained a license with the New York City Department of Consumer Affairs on October 12, 2011, and the affidavit of defendant’s claims specialist demonstrated that the supplies had been provided after that date. Thus, defendant’s evidence was insufficient to demonstrate the absence of any material issues of fact (see id.) regarding plaintiff’s licensing. Furthermore, to the extent that the Civil Court considered prior determinations by the Supreme Court, Nassau County, in the declaratory judgment action, as the Supreme Court’s orders pertained to supplies that had been distributed before October 12, 2011, the Civil Court’s reliance on the orders of the Supreme Court was misplaced, and the branch of defendant’s motion based on plaintiff’s alleged lack of a license should have been denied.

Contrary to plaintiff’s assertion, plaintiff was not entitled to summary judgment, 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 the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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