Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Talia Beard of counsel), for appellant. Petre and Associates, P.C. (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered December 14, 2017. The order denied defendant’s motion to vacate an order of that court dated January 20, 2017 granting plaintiff’s motion for summary judgment upon defendant’s failure to timely serve its opposing papers and cross motion as provided for in a stipulation of settlement.

ORDERED that the order entered December 14, 2017 is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits and subsequently moved for summary judgment. In a stipulation dated April 4, 2016, the parties agreed, among other things, that plaintiff’s summary judgment motion would be adjourned to January 17, 2017, and that “Opposition to the within motion and all cross-motions must be served on or before August 17, 2016. Any cross-motions served beyond this date will be deemed untimely.” On December 16, 2016, defendant served plaintiff with its cross motion, which included its opposition to plaintiff’s motion. Plaintiff opposed the cross motion. By order dated January 20, 2017, the Civil Court granted plaintiff’s motion upon defendant’s default in timely serving its cross motion “as per the stipulation.” Thereafter, defendant moved to, among other things, vacate the January 20, 2017 default order. Plaintiff opposed the motion. By order entered December 14, 2017, the Civil Court denied defendant’s motion, finding that the “motion [is] incomplete” since “defendant[‘s] papers are missing the adjournment stipulation which set up the briefing schedule for the original motion.”

In support of defendant’s appellate contention that its motion to vacate should have been granted, defendant argues that, pursuant to the April 4, 2016 stipulation, its opposition papers and cross motion had to be served on or before “October 16, 2016” [sic], and it is of no consequence [*2]that a copy of the stipulation was not annexed to its papers submitted in support of its motion to vacate the January 20, 2017 order, since the contents of the stipulation are uncontroverted. However, CPLR 2214 (c) clearly provides that “The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved.” As the stipulation was most certainly “necessary to the consideration of the questions involved,” the Civil Court properly denied defendant’s motion to vacate (see CPLR 2214 [c]; Cripps v Dibisceglie, 172 AD3d 1305, 1306 [2019]; Wells Fargo Home Mtge., Inc. v Mercer, 35 AD3d 728 [2006]; Rudzinski v Jonathan L. Glashow, MD, PC, 55 Misc 3d 1215[A], 2017 NY Slip Op 50583[U], *3 [Sup Ct, Kings County 2017]). In any event, defendant failed to establish a reasonable excuse for its default based on law office failure (see CPLR 2005), as it did not “submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]).

In view of the foregoing, we pass on no other issue.

Accordingly, the order entered December 14, 2017 is affirmed.

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

Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 15, 2017. The order denied 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 in the amount of $2,738.52, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

On appeal, defendant argues that the Civil Court lacked “jurisdiction” because defendant is not covered by the provisions of New York Insurance Law § 5107. To the extent that the argument goes to subject matter jurisdiction, it lacks merit. As the complaint seeks to recover a sum of less than $25,000, this action falls within the subject matter jurisdiction of the Civil Court (see CCA 202).

To the extent that defendant asserts lack of personal jurisdiction, there is no need to consider defendant’s claimed lack of contacts with New York since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at [*2]649; Osserman v Osserman, 92 AD2d 932 [1983]).

Even if we view defendant’s argument on appeal as a claim that, on the merits, there is no liability here because defendant is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant failed to demonstrate that its policy did not, in fact, provide for such coverage (see Masigla v Windhaven Ins. Co., 64 Misc 3d 137[A], 2019 NY Slip Op 51169[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant did not demonstrate its entitlement to judgment as a matter of law.

Accordingly, the order is affirmed.

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

[*1]

Gary Tsirelman, P.C., Brooklyn (Stefan M. Belinfanti of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Nathan M. Shapiro of counsel), for respondent.

Rivkin Radler, LLP, Uniondale (Barry I Levy of counsel), for amici curiae.

Order, Appellate Term, First Department, entered January 2, 2018, which reversed an order of the Civil Court, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, denying the petition to vacate a master arbitrator’s award and confirming the award, and remanded the matter to Civil Court for a framed issue hearing on whether the policy limit was exhausted before petitioner became obligated to pay respondent’s claims, unanimously affirmed, without costs.

Generally, courts will not set aside an award where “there is a rational view to support it” (Country-Wide Ins. Co. v May, 282 AD2d 298, 298 [1st Dept 2001]; see also Matter of Carty v Nationwide Ins. Co., 212 AD2d 462 [1st Dept 1995]). However, in addition to irrationality, an award may be vacated if the arbitrator exceeds his or her power (see CPLR 7511 [b] [1] [iii]). An arbitrator exceeds his/her power if the award is “beyond the policy limits” (Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; see also e.g. Countrywide Ins. Co. v Sawh, 272 AD2d 245 [1st Dept 2000]).

Respondent contends that its claims were complete before the policy issued by petitioner was exhausted. This argument is unavailing. The Court of Appeals has interpreted the word “claims” in 11 NYCRR 65-3.15 to mean “verified claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]), i.e., claims as to which the healthcare provider has submitted additional information requested by the insurer (see id. at 297-298, 300-301). Petitioner requested verification in the form of an examination under oath (EUO). Since respondent never appeared for an EUO, its claims were never verified. The defense that an award exceeds an arbitrator’s power is so important that a party may introduce evidence for the first time when the other party tries to confirm the award (see Brijmohan, 92 NY2d at 822-823).

Respondent may also raise on appeal the purely legal argument that Appellate Term lacked the power to remand to Civil Court for a framed issue hearing (see generally Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319, 323 n 2 [1st Dept 2006], affd 8 NY3d 931 [2007]). On the merits, however, this argument is unavailing (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, 1st Dept 2011]).

In view of the foregoing, respondent is not entitled to the attorneys’ fees it requested. Concur—Gische, J.P., Mazzarelli, Webber, Gesmer, JJ. [Prior Case History: 58 Misc 3d 144(A), 2017 NY Slip Op 51911(U).]

CV-6239-18/HU
C. Stephen Hackeling, J.

Upon the following papers numbered 1 to 20 read on this motion to dismiss plaintiff’s complaint by Notice of Motion/Order to Show Cause and supporting papers 1,2,6; Notice of Cross Motion and supporting papers 7,8,13; Answering Affidavits and supporting papers 7,8,13; Replying Affidavits and supporting papers 14-18,20; Filed papers; Other exhibits: 3-5,9-12,19; (and after hearing counsel in support of and opposed to the motion), it is,

ORDERED that the motion by defendant to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(3), on the ground that plaintiff lacks legal capacity to sue in the State of New York, pursuant to BCL §1312(a), is denied, with prejudice; and it is further

ORDERED that the alternative motion by defendant to compel discovery and a deposition of plaintiff, is denied; and it is further

ORDERED that the cross-motion by plaintiff for summary judgment pursuant to CPLR 3212, and plaintiff’s request for an order pursuant to CPLR 3212(g), are both denied.

Plaintiff health service provider, a limited liability corporation,^[FN1] seeks reimbursement of No-Fault benefits in the sum of $7,943.11, as assignee of a New York No-Fault claimant, for medical and surgical services rendered to its Brooklyn assignor, at its New Jersey surgical center on 05/04/2018, stemming from an automobile accident of 1/08/2018.

Plaintiff lists its address as 6 Chestnut Ridge Road, Montvale, New Jersey 07645 on the summons, and the submitted, uncertified medical records (see CPLR 4518) not objected to by defendant, show the same address as the location of the surgery rendered on 5/04/2018.

Defendant now moves for dismissal pursuant to CPLR 3211(a) (3), arguing that plaintiff lacks standing to bring this action in the State of New York, because plaintiff has failed to register with the Secretary of State in New York to operate as a foreign corporation authorized to do business in New York, pursuant to BCL §1312(a). Defendant asserts plaintiff is a New Jersey corporation whose business activities within New York State are so systematic and regular as to manifest continuity of activity,^[FN2] and contends that online data activity demonstrates that plaintiff has over 627 pending cases against insurance companies in the New York State court system.

Alternatively, defendant moves pursuant to CPLR 3101 for an order compelling plaintiff to appear for deposition, to address the issue of plaintiff’s legal capacity to sue in the State of New York.^[FN3]

In opposition to the motion to dismiss, plaintiff denies it qualifies as a foreign corporation required to register with the New York Secretary of State to operate as a foreign corporation doing business in New York, stating its contact with the State of New York is “incidental” and not “systematic” as claimed by defendant. Plaintiff asserts a denial of its right to sue in a New York State Court, based upon an assignment of a New York No-Fault claim, is a violation of the interstate commerce clause of the U.S. Constitution.

Plaintiff further contends that plaintiff’s assignor is a New York resident (living in Brooklyn), who assigned his New York No-Fault contract to plaintiff, who brought the instant suit to collect for unpaid medical services rendered to plaintiff’s assignor at its New Jersey medical facility.

In addition, plaintiff cross-moves for summary judgment for the sums delineated in the complaint, contending it timely provided its claim to defendant, thirty days have since transpired, and defendant has not paid or denied the claim.

In the alternative, plaintiff seeks an order pursuant to CPLR 3212(g), stating that plaintiff [*2]has met its prima facie case in the event of trial.

In opposition to plaintiff’s motion for summary judgment, defendant contends that contrary to plaintiff’s statement, defendant has denied the claim within 30 days of its receipt, and attaches documents of proof in support of this contention.

Here, the Court determines that defendant has failed to satisfy its burden of demonstrating that plaintiff was a foreign corporation “doing business” in the State of New York, and was thereby subject to the registering conditions placed by BCL §1312 on foreign corporate capacity to sue in New York (see Pergament Home Ctrs. v Net Realty Holding Trust, 171 AD2d 736 [2nd Dept 1991]). Though there is no admissible proof that plaintiff is a New Jersey Corporation, plaintiff asserts in its complaint that it is a LLC. and has a New Jersey address. Plaintiff also asserts its business contact with the State of New York is “incidental” and not “systematic.” In addition, defendant contends that plaintiff is a New Jersey business, which plaintiff does not deny.

Therefore, the Court determines that defendant has failed to overcome the presumption that plaintiff is doing business in its state of incorporation, and not in the State of New York (see Highfill, Inc. v Bruce and Iris, Inc., 50 AD3d 742 [2nd Dept 2008]).

The Court further finds that there is no proof that plaintiff maintains an office or phone listing, or owns real property or has employees or sales reps, in the State of New York (see Uribe v Merchants Bank of New York, 266 AD2d 21, 22 [1st Dept 1999]; see also S & T Bank v Spectrum Cabinet Sales, Inc., 247 AD2d 373 [2nd Dept 1998]).

Indeed, though defendant broadly links over 627 pending cases in the State of New York court system brought by plaintiff against insurance companies, as evidence of plaintiff’s New York systemic activities, the linkage is disingenuous and unavailing. First, defendant’s proof is by inadmissible hearsay. Next, plaintiff’s activities in the State of New York, appear to be limited to collection lawsuits from assignments under New York’s No-Fault law, brought in New York courts for unpaid medical services rendered in its business as a health service provider and surgical center in the State of New Jersey.

Moreover, the instant action does not equate to an assignment of a collection of account receivables for consumer debt purchased by a plaintiff, for enforcement through the New York State court system (see Centurion Capital Corp. v Guarino, 35 Misc 3d 1219[A][Civ Ct, City of New York, 2012]), nor an assignment to recover money for goods sold in New York by an out-of-state (Pennsylvania) corporation (see S & T Bank v Spectrum Cabinet Sales, Inc., supra]).

The Court finds that the undisputed facts remain that plaintiff is a health service provider and surgical center, rendering services at its health care facility located in New Jersey, which requires incidental litigation for collection of its unpaid charging fees in the courts of the State of New York, where entrance as a plaintiff is contemplated through assignments under New York’s No-Fault law. It is not as a corporate entity whose actual business is as a systematic purchaser of assignments for collection enforcement in the courts of the State of New York.

The Court notes that even if plaintiff was required to register as a foreign corporation doing business in the State of New York, it is not a jurisdictional defect, and does not defeat the action, as a plaintiff may cure the failure to obtain a certificate pursuant to BCL §1312 at any time prior to resolution of the action by judgment (see Uribe v Merchants Bank of New York, supra; Hot Roll Mfg. Co. v Cerone Equipment Co., 38 AD2d 339 [3rd Dept, 1972]; see also Virgilio Flores, S.A. v Jerome Radelman, Inc., 567 F. Supp 577 [1982]). As a result, the instant circumstances do not create a true legal incapacity to sue within the meaning of CPLR 3211[a][3] [*3](see Paper Manufacturers Co. v Ris Paper Co., 86 Misc 2d 95 [City of New York, Civ Ct, 1976]).

Accordingly, the motion by defendant to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(3), on the ground that plaintiff lacks legal capacity to sue in the State of New York pursuant to BCL §1312(a), is denied, with prejudice.

Defendant’s alternative motion to compel discovery and a deposition of plaintiff “if defendant (sic) disputes that it lacks capacity to sue” is denied. The issue of plaintiff’s legal capacity to sue under BCL §1312(a) is now moot, given the Court’s instant ruling, thereby eliminating the need for defendant’s request for discovery and deposition for this purpose. Supervision of discovery and the setting of reasonable terms and conditions rests within the sound discretion of the Court (see Hernandez v City of Yonkers,74 AD3d 1025, 1026 [2nd Dept 2010]). Accordingly, defendant’s alternative motion to compel discovery and a deposition of plaintiff, is denied.

Plaintiff’s cross-motion for summary judgment pursuant to CPLR 3212, upon the grounds that defendant has failed to pay or deny the bills within 30 days of receipt of plaintiff’s claim or properly toll the time, for dates of service on 05/04/18, is denied (see 11 NYCRR 65-3.8[a][1]). Defendant has refuted plaintiff’s contentions with documents demonstrating that it timely provided a denial of claim to plaintiff,^[FN4] thereby creating a question of fact on this issue requiring a trial (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]).

Furthermore, the Court finds that plaintiff has failed to demonstrate a prima facie case in support of summary judgment, as the necessary element provided by the Assignment of Benefits form submitted by plaintiff’s assignor, states it is for an accident which occurred on 3/19/18, not the subject accident of 1/08/18 (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr.,supra; Zuckerman v City of New York, supra).

Any remaining contentions lack merit.

The foregoing constitutes the decision and order of this Court.

Dated: January 20, 2020

J.D.C.

Footnotes

Footnote 1:Though defendant claims plaintiff is a New Jersey corporation, there is no admissible evidence substantiating this claim.

Footnote 2:Defendant’s papers are contradictory, in that paragraph 10 of the affirmation in support of the motion states plaintiff did not do any business in New York, while paragraph 13 states plaintiff has been doing large amounts of New York business. Furthermore, defendant states in paragraph 18 that plaintiff lists a New York business address, which is clearly false, as demonstrated by the New Jersey address listed in the summons and the lack of any other address listed in any other papers.

Footnote 3:Defendant’s Notice of Motion seeks an order compelling plaintiff to appear for deposition, only, but its affirmation supports discovery of plaintiff (¶ 3) and documentary discovery (¶ 20), on the issue of plaintiff’s legal capacity to sue in the State of New York.

Footnote 4:In paragraph 12 of the Affirmation in Support, Defendant cites Amer-A-Med Health Products, Inc. v GEICO Ins. Co., 2010 NY Slip Op 32258(U)(Sup Ct Nass Cty). However, the correct cite is 2010 NY Slip Op 31032, and the case does not stand for the proposition “that foreign No-Fault providers must comply with BCL §1312(a).”

The Rybak Firm, PLLC (Damin J. Toell and Richard Ruzhik of counsel), for appellant. Rivkin Radler, LLP (J’Naia L. Boyd of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 3, 2017. The order granted defendant’s motion to vacate an order of that court (Robin Kelly Sheares, J.) dated August 12, 2016 granting plaintiff’s prior unopposed motion for summary judgment, and upon such vacatur, to deny plaintiff’s prior motion and grant defendant’s motion for summary judgment dismissing the complaint, to the extent of vacating the August 12, 2016 order and the judgment entered January 10, 2017 pursuant thereto, and, in effect, denying plaintiff’s prior motion and “reinstat[ing]” an October 27, 2016 order of that court (Robin S. Garson, J.) granting defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered November 3, 2017 is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new determination of defendant’s motion to vacate the August 12, 2016 default order, and, upon such vacatur, to deny plaintiff’s prior motion for summary judgment and grant defendant summary judgment dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff served a motion for summary judgment on October 7, 2015, returnable on November 9, 2015, which, by stipulation, was adjourned to August 12, 2016. On December 23, 2015, while [*2]plaintiff’s motion was pending, defendant served a motion for summary judgment dismissing the complaint, returnable on January 25, 2016, which, by stipulation, was adjourned to October 26, 2016. On August 12, 2016, despite defendant’s request for an adjournment of plaintiff’s motion to the return date of defendant’s own pending motion for summary judgment, presumably so that the motions could be decided together, the Civil Court (Robin Kelly Sheares, J.) granted plaintiff’s unopposed motion for summary judgment. Three days later, on August 15, 2016, plaintiff served opposition papers to defendant’s still-pending motion for summary judgment, which plaintiff denominated as “Defendant’s cross-motion”; those papers also referenced and purported to further support “plaintiff’s motion for summary judgment.”

By order to show cause signed on October 20, 2016, defendant moved to vacate the August 12, 2016 order granting plaintiff’s unopposed motion for summary judgment and, upon such vacatur, to deny plaintiff’s prior motion and grant defendant summary judgment dismissing the complaint. While that motion was pending, the Civil Court (Robin S. Garson, J.), by order entered October 27, 2016, granted defendant’s motion for summary judgment dismissing the complaint. On January 10, 2017, a default judgment was entered awarding plaintiff the principal sum of $2,418.95, based upon the August 12, 2016 order. On August 18, 2017, plaintiff served opposition papers to defendant’s October 20, 2016 motion. Defendant subsequently served reply papers, attaching the October 27, 2016 order granting its motion for summary judgment dismissing the complaint. By order entered November 3, 2017, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion to the extent of vacating the August 12, 2016 order and the January 10, 2017 judgment entered pursuant thereto, and, in effect, denying plaintiff’s prior motion and “reinstat[ing]” the October 27, 2016 order granting defendant’s motion for summary judgment dismissing the complaint, giving it “full force and effect.”

In order to vacate a default order or judgment pursuant to CPLR 5015 (a) (1), a defendant must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Li Fen Li v Cannon Co., Inc., 155 AD3d 858 [2017]; Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557 [2014]). Here, in the November 3, 2017 order, the Civil Court relied on the October 27, 2016 order, which awarded summary judgment to defendant, to find that defendant had a potentially meritorious defense to the action sufficient to warrant the vacatur of the August 12, 2016 order.

A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Here, the grant of summary judgment to plaintiff by order dated August 12, 2016 was a final determination of the action. Therefore, the Civil Court should not have issued its October 27, 2016 order granting defendant’s motion for summary judgment, since it should not even have entertained that motion, as that motion did not seek to vacate the August 12, 2016 order granting plaintiff’s motion for summary judgment upon defendant’s default. Consequently, it was error for the Civil Court, in its November 3, 2017 order, [*3]to rely on the October 27, 2016 order—which purported to award defendant summary judgment after plaintiff had already been awarded summary judgment on August 12, 2016—and to find, by virtue of the October 27, 2016 order, that defendant had established a meritorious defense, in order to grant the branch of defendant’s motion seeking to vacate the August 12, 2016 order (and, in effect, the January 10, 2017 judgment entered pursuant thereto). Rather, the Civil Court should have made its own independent assessment of the merits of the branch of defendant’s motion seeking to vacate the August 12, 2016 order based on the facts submitted in those motion papers in order to determine whether the default should be vacated and, if so, whether upon such vacatur, the branch of defendant’s motion seeking summary judgment should be granted.

Accordingly, the order entered November 3, 2017 is reversed and the matter is remitted to the Civil Court for a new determination of defendant’s motion to vacate the August 12, 2016 default order and, upon such vacatur, to deny plaintiff’s prior motion for summary judgment and grant defendant summary judgment dismissing the complaint.

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

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gabriel & Shapiro, LLC (Lenard Brumfield, Esq.), for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (James F. Matthews, J.), dated November 2, 2017. The order granted the petition in a CPLR 7511 proceeding to vacate a master arbitrator’s award dated December 19, 2016, and, upon such vacatur, in effect, confirmed the arbitrator’s award and awarded attorney’s fees to petitioner.

ORDERED that the order is affirmed, with $25 costs, and the matter is remitted to the District Court for further proceedings consistent herewith.

After a provider’s claims for assigned first-party no-fault benefits had been denied based on the provider’s “failure to cooperate” at an examination under oath, and upon “improper kickbacks,” “improper fee splitting,” “improper fee scheduling” and “billing for services not rendered,” the provider submitted the claims to arbitration pursuant to Insurance Law § 5106 (b). Following a hearing, the arbitrator found that the provider had established its prima facie case which the insurer had failed to rebut, and awarded the provider the monies it sought. The insurer appealed the award to the master arbitrator who, by an award dated December 19, 2016, vacated the arbitrator’s award and remitted the matter for a hearing before a new arbitrator. The provider then commenced this proceeding to vacate the master arbitrator’s award, pursuant to CPLR 7511 (1) (b) (iii), on the ground that the master arbitrator had exceeded his power. The insurer opposed the petition and requested that the master arbitrator’s award be confirmed. The District [*2]Court, by order dated November 2, 2017, from which the insurer appeals, found that there was a rational basis for the original arbitrator’s award, that the master arbitrator had “exceeded his statutory authority,” granted the petition, vacated the master arbitrator’s award, and, upon such vacatur, “reinstated” the original arbitrator’s award, and awarded attorney’s fees to the provider.

The scope of judicial review of a master arbitrator’s award is limited to whether the master arbitrator exceeded his power (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). The role of a master arbitrator “is to review the arbitrator’s determination to assure that it was reached in a rational manner and that the decision was not arbitrary and capricious. It does not include the power to review, de novo, the matter originally presented to the arbitrator” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]; see also Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Matter of Progressive Cas. Ins. Co. [Elite Med. Supply of NY, LLC], 162 AD3d 1471, 1472 [2018]). A master arbitrator exceeds his statutory power by making factual determinations, by reviewing factual and procedural errors committed at the original arbitration hearing, by weighing the evidence, or by resolving issues of credibility (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224; Matter of Richardson v Prudential Prop. & Cas. Ins. Co., 230 AD2d 861 [1996]; Matter of Allstate Ins. Co. v Keegan, 201 AD2d at 725).

Here, the master arbitrator vacated the arbitrator’s award based on “[t]he rational and what appears to [sic] insufficient evidence presented,” which necessarily involves a review of the facts by the master arbitrator (see e.g. Matter of Allstate Ins. Co. v Keegan, 201 AD2d at 725). Upon our review of the record, we find that there was a rational basis for the original arbitrator’s award. Consequently, the master arbitrator exceeded his authority by reviewing, de novo, factual issues already determined by the original arbitrator (see Matter of Richardson v Prudential Prop. & Cas. Ins. Co., 230 AD2d 861). We, thus, affirm the order of the Civil Court which vacated the master arbitrator’s award and, in effect, confirmed the arbitrator’s award (see CPLR 7511 [b] [1] [iii]; 7510).

Furthermore, the provider is entitled to recover reasonable attorney’s fees for this appeal (see 11 NYCRR § 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1169 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). Therefore, the matter is remitted to the District Court to determine the provider’s reasonable attorney’s fees for this appeal (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168).

Accordingly, the order is affirmed and the matter is remitted to the District Court for further proceedings relating to attorney’s fees.

It is noted that a proceeding to vacate or to confirm an arbitrator’s award is a special proceeding brought pursuant to CPLR article 4 and should, therefore, terminate in a judgment rather than an order (see CPLR 411).

ADAMS, P.J., TOLBERT and GARGUILO, JJ., concur.

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez, LLP, New York (Jean H. Kang of counsel), for respondent.

Judgment, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 30, 2018, awarding respondent attorney’s fees in the sum total of $980 in connection with a no-fault arbitration award, unanimously modified, on the law, to remand the matter to Supreme Court for a determination of respondent’s reasonable attorney’s fees incurred in the CPLR article 75 proceeding brought by petitioner to vacate the arbitration award and on this appeal, and otherwise affirmed, without costs.

“The attorney’s fee for services rendered . . . in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]). The term “court appeal” applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017]). Accordingly, respondent TC Acupuncture, as a prevailing applicant for payment by petitioner insurer of attorney’s fees in an article 75 proceeding reviewing an arbitration award, is entitled to an additional award of attorney’s fees, as fixed by the court, for its motion to modify the order, in a 2015 article 75 proceeding denying Countrywide’s petition to vacate the arbitration award, to include a ruling confirming the arbitration and its opposition to Countrywide’s motion to reargue that order. Supreme Court erred in failing to award these additional fees.

Respondent is also entitled to the attorney’s fees incurred in this appeal to this Court of the order issued in the article 75 proceeding, to be fixed by the court, upon remand, pursuant to 11 NYCRR 65-4.10 (j) (4) (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). Concur—Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from February 3, 2003 through February 14, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2003. Defendant did not pay the settlement amount, and a judgment was entered on January 30, 2017, pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the interest. By order entered February 22, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from February 3, 2003 through February 14, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. [*2]Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

PESCE, P.J., and ELLIOT, J., concur.

WESTON, J., dissents and votes to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum:

This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 22, 2018 as sua sponte stayed the accrual of no-fault statutory interest from February 3, 2003 through February 14, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th [*3]& 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from February 3, 2003 to February 14, 2017 should be vacated.

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 20, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from February 20, 2008 through February 22, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2008. Defendant did not pay the settlement amount, and a judgment was entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 31, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from February 20, 2008 through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

PESCE, P.J., and ELLIOT, J., concur.

WESTON, J., dissents and votes to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum:

This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2008. Defendant did not pay the settlement amount, and a judgment was entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 20, 2018 as sua sponte stayed the accrual of no-fault statutory interest from February 20, 2008 through February 22, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v [*3]Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from February 20, 2008 to February 22, 2017 should be vacated.

[*1]

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for appellant.

Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York, NY (Benjamin Gonson of counsel), for respondents.

In an action, inter alia, for certain declaratory relief, the nominal defendant Hereford Insurance Company appeals from an order of the Supreme Court, Kings County (Andrew Borrok, J.), dated March 29, 2018. The order, insofar as appealed from, denied the motion of the nominal defendant Hereford Insurance Company for leave to enter a default judgment on its counterclaim for loss transfer pursuant to Insurance Law § 5105 (a) insofar as asserted against the plaintiff Repwest Insurance Company and deemed the reply of the plaintiff Repwest Insurance Company to the counterclaim to have been served.

Ordered that the order is reversed insofar as appealed from, on the law, with costs to the plaintiff Repwest Insurance Company, and the counterclaim of the nominal defendant Hereford Insurance Company is dismissed for lack of subject matter jurisdiction.

The plaintiff Repwest Insurance Company (hereinafter Repwest) commenced this action for a judgment declaring, inter alia, that it has no duty to provide insurance coverage for any claims arising out of a collision between a livery vehicle insured by the nominal defendant Hereford Insurance Company (hereinafter Hereford) and a vehicle driven by the defendant Nazim Hanif and insured by Repwest. The defendants Dinorah Carmen Anglero, Dario Ferrer de la Cruz, and Ramon Duarte Garcia were passengers in the livery vehicle and no-fault benefits were paid on their behalf by Hereford. Repwest alleged that there is no coverage for the subject incident because it was not an accident, but rather the result of an intentional act/fraudulent scheme. Thereafter, Hereford interposed an answer to the complaint and asserted a counterclaim against Repwest, among others, for loss transfer pursuant to Insurance Law § 5105 (a).

After Repwest failed to timely reply to the counterclaim, Hereford moved for leave to enter a default judgment on its counterclaim insofar as asserted against Repwest. The Supreme Court denied Hereford’s motion and deemed Repwest’s reply to the counterclaim to have been served. Hereford appeals.

Pursuant to Insurance Law § 5105 (b), “[t]he sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent” (see Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 149 AD3d 1075, 1076 [2017]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]). Contrary to Hereford’s contention, since its counterclaim is for loss transfer pursuant to section 5105 (a), the counterclaim is subject to mandatory arbitration and the Supreme Court had no subject matter jurisdiction over the counterclaim (see Insurance Law § 5105 [b]; State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978). Repwest’s complaint and its disclaimer of coverage for the subject incident do not dictate a different result (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978; DTG Operations, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 30119[U] [Sup Ct, NY County 2013]; 11 NYCRR 65-4.11 [a] [6]).

Although Repwest did not seek dismissal of the counterclaim in the Supreme Court, “a court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008] [internal quotation marks omitted]; see Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121, 133 [2018]). Since the court lacked subject matter jurisdiction over Hereford’s counterclaim, the counterclaim should have been dismissed (see Empire Ins. Co. v Metropolitan Suburban Bus. Auth., 159 AD2d 312, 312 [1990]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 978).

In light of our determination, we need not reach the parties’ remaining contentions. Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.