Peter C. Merani, P.C. (Adam Waknine of counsel), for appellant. Gary Tsirelman, P.C. (Selina Chin, David M. Gottlieb and Doug Mace 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 December 4, 2017. The order denied defendant’s motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered July 27, 2016 upon defendant’s failure to appear or answer 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, defendant appeals from an order of the Civil Court, entered December 4, 2017, which denied defendant’s motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered July 27, 2016 upon defendant’s failure to appear or answer the complaint, finding that defendant had failed to establish a reasonable excuse for its default.

The affidavit of service indicates that defendant was served on May 13, 2016 by delivery of the summons and complaint to an individual at defendant’s offices who was known to the process server to be defendant’s employee authorized to accept service of process. The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving a general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [*2][2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment based on excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

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

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered May 16, 2017. The order granted defendant’s motion to, in effect, hold the proceeding in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

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 for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and, in the event plaintiff fails to file proof of such an application to the Workers’ Compensation Board with the court within 90 days of the date of the court’s order, granting defendant summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been injured during the course of his employment. By order entered May 16, 2017, the Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op [*2]52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since ‘primary jurisdiction with respect to determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]). Consequently, the Civil Court properly granted defendant’s motion to hold the action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

Accordingly, the order is affirmed.

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

Decided on November 29, 2019

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

Decided on November 29, 2019

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

Law Office of Aloy O. Ibuzor (Jerome F. X. Hoffman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 25, 2018. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon denying plaintiff’s motion for summary judgment, made implicit CPLR 3212 (g) findings in plaintiff’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) findings in plaintiff’s favor are vacated; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had not received the claims at issue. In an order entered April 25, 2018, the Civil Court stated that plaintiff’s motion “was granted” to the extent that plaintiff had “established its prima facie case for all purposes in the action as a matter of law”; that defendant’s “mere denial of receipt of the claims at issue was insufficient to rebut the presumption of receipt established by [plaintiff’s] proof of mailing”; that defendant’s cross motion was denied “as there are material triable issues of fact”; and that the “action is to proceed to trial solely on issues of [defendant’s] prima facie case and the defense of non-receipt.”

We note that the Civil Court’s order is internally inconsistent. First, the court appeared to find, implicitly pursuant to CPLR 3212 (g), that plaintiff had made a “prima facie case.” [*2]However, if the court had truly found that plaintiff had established, as “incontrovertible,” all elements of its prima facie case for “all purposes in the action” (CPLR 3212 [g]), “the court would have granted summary judgment to plaintiff” (EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Moreover, under the circumstances, finding, in essence, that it was “incontrovertible” for “all purposes in the action” (CPLR 3212 [g]) that plaintiff had mailed the claim forms to defendant is inconsistent with also finding that there are issues of fact as to defendant’s defense that it had not received the claims at issue (see Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [“by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant”]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [“by rebutting the presumption of receipt, plaintiff raised a triable issue of fact as to whether the verification requests had been properly mailed to plaintiff in the first place”]). Indeed, by, in effect, finding a triable issue of fact as to whether defendant received the claims at issue, the court contradicted its own statement that defendant’s “mere denial of receipt of the claims at issue was insufficient to rebut the presumption of receipt established by [plaintiff’s] proof of mailing.”

Defendant correctly argues on appeal that it submitted sufficient proof to demonstrate, prima facie, that it had not received plaintiff’s claim forms. However, the affidavit of plaintiff’s owner was sufficient to raise an issue of fact as to whether the claims had been mailed to defendant in accordance with a standard mailing practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, there is an issue of fact as to whether defendant had received the claims at issue and so defendant was not entitled to summary judgment dismissing the complaint (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) findings in plaintiff’s favor are vacated.

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

Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. Gallo, Vitucci & Klar, LLP (Richard E. Weber 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 December 5, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 that, pursuant to Florida law, there was a lack of coverage due to the valid rescission, ab initio, of the Florida automobile insurance policy in question. Plaintiff opposed the motion. By order entered December 5, 2017, the Civil Court granted defendant’s motion. On appeal, plaintiff contends that defendant failed to demonstrate that the insurance policy had been properly rescinded in accordance with Florida law.

It is uncontroverted that the vehicle involved in the accident was insured by defendant under a Florida automobile insurance policy. According to the affidavit submitted by an employee of defendant’s managing agent, an investigation conducted after the accident revealed that, at the time the policyholder applied for automobile insurance, she did not reside at the Florida address listed on her application, and that the insured vehicle was not garaged at that Florida address. Thereafter, defendant purportedly rescinded the policy ab initio, pursuant to [*2]Florida Statutes Annotated § 627.409, which permits the retroactive rescission of an insurance policy.

In order to demonstrate that an automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Here, defendant’s motion papers failed to demonstrate that it had provided the insured with notice of the rescission, and defendant admitted that it had not returned all of the paid premiums to the insured. Consequently, defendant failed to show, prima facie, that it had rescinded the policy ab initio pursuant to Florida law (see T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co., 59 Misc 3d 142[A], 2018 NY Slip Op 50665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

To the extent that defendant’s motion seeks summary judgment dismissing the complaint on the additional ground that plaintiff’s action is barred by the doctrine of res judicata based upon orders issued by the Circuit Court of Florida, upon the assignor’s default, in a declaratory judgment action, such contention lacks merit. We first note that although defendant did not move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer, and failed to include res judicata as an affirmative defense in its answer, “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see also Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), and plaintiff’s papers in the Civil Court failed to allege any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]; Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50500[U]). However, it is uncontroverted that plaintiff was neither named nor served in the Florida declaratory judgment action, and was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. As a result, the orders of the Circuit Court of Florida cannot be given res judicata effect as to plaintiff herein, as plaintiff did not have a full and fair opportunity to defend its interests in that action (see Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50500[U]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate its entitlement to summary judgment dismissing the complaint based on res judicata (see Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50500[U]).

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

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

Law Office of David O’Connor, LLC (David O’Connor and Sara Diamond of counsel), for appellant. Picciano & Scahill, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered October 4, 2017. The order granted the branch of defendant’s motion seeking to vacate a judgment of that court entered March 24, 2016 upon defendant’s failure to appear for trial, and provided for the filing of a new notice of trial and the restoration of the matter to the trial calendar.

ORDERED that the order is modified by striking the provisions therein for the filing of a new notice of trial and restoration of the matter to the trial calendar; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served an answer to the complaint, but failed to appear for trial on June 4, 2015. The Civil Court referred the matter to the inquest clerk. Plaintiff’s attorney signed a proposed judgment on March 23, 2016. An affidavit of service, which was executed by plaintiff’s employee, stated that “judgment papers,” apparently including the proposed judgment, were served upon defendant’s attorney on March 23, 2016. A default judgment awarding plaintiff the principal sum of $6,155.90 was entered the following day, on March 24, 2016.

Defendant moved to, among other things, stay the execution and/or enforcement of the judgment and to vacate the judgment on the grounds that the Civil Court lacked jurisdiction to [*2]enter a judgment (see CPLR 5015 [a] [4]) and that defendant had a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]). Plaintiff opposed defendant’s motion. By order entered October 4, 2017, the Civil Court granted the branch of defendant’s motion seeking relief pursuant to CPLR 5015 (a) (1), finding that defendant had established an excusable default and a potentially meritorious defense to the action. The order vacated the judgment, provided for plaintiff’s filing of a new notice of trial and directed the clerk of the court to restore the matter to the trial calendar and notify the parties of the new trial date.

A defendant which appears in an action, but subsequently defaults “is entitled to at least five days’ notice of the time and place” of an application to the court or the clerk for leave to enter a default judgment (CPLR 3215 [g] [1]; see Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2015]). In the case at bar, plaintiff’s application for the entry of the judgment was dated March 23, 2016 and apparently served on defendant on March 23, 2016. The judgment was entered the following day. While a court may, upon such a default, dispense with the notice requirement (see CPLR 3215 [g] [1]), there is no indication in the record before us that the Civil Court had exercised such discretion. Plaintiff’s failure to give defendant notice as required by CPLR 3215 (g) (1) deprived the court of jurisdiction to entertain plaintiff’s application to enter the judgment (see Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d 924 [2019]; Deutsche Bank Natl. Trust Co. v Gavrielova, 130 AD3d 674 [2015]; Paulus, 128 AD3d at 126) and warrants the vacatur of the judgment. However, where a judgment is vacated due to a jurisdictional defect of improper notice, such a defect “does not, standing alone, entitle [defendant] to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits” (Paulus, 128 AD3d at 126).

Here, the Civil Court went beyond just vacating the default judgment; rather, it relieved defendant of the underlying default upon granting the branch of defendant’s motion seeking relief pursuant to CPLR 5015 (a) (1). The court found that defendant had proffered a reasonable excuse for its default and a potentially meritorious defense to the action, and its order provided for the action to be restored to the trial calendar. Upon the record before us, we find, contrary to the determination of the Civil Court, that defendant’s bald, unsupported denial of receiving notices of trial or any other pertinent notices from plaintiff was insufficient to establish an excusable default. In the absence of a reasonable excuse, it is unnecessary to consider whether defendant demonstrated the existence of a potentially meritorious defense to the action so as to warrant the restoration of the action to the calendar.

Accordingly, the order is modified by striking the provisions therein for the filing of a new notice of trial and restoration of the matter to the trial calendar.

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

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for appellants. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea 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 1, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ 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 providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiffs cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.

It is uncontroverted that plaintiffs filed their notice of trial on July 14, 2016. Unless a court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]; Boereau v Scott, 140 AD3d 687 [2016]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). “A [*2]motion on notice is made when a notice of the motion . . . is served” (CPLR 2211). Defendant’s affidavit of service states that its summary judgment motion was served on November 23, 2016, which is over 120 days after plaintiffs had filed their notice of trial. Thus, defendant’s summary judgment motion was untimely.

Defendant failed to demonstrate, in its moving papers, good cause for not filing the motion in a timely manner (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]). The Civil Court improvidently exercised its discretion in implicitly considering the good cause argument raised for the first time in defendant’s reply papers (see Goldin v New York & Presbyt. Hosp., 112 AD3dat 579; St. John’s Univ. v Butler Rogers Baskett Architects, P.C., 105 AD3d 728, 728 [2013]; Cabibel v XYZ Assoc., L.P., 36 AD3d 498 [2007]). As plaintiffs’ affidavit of service attests that its cross motion was served by plaintiffs’ attorney on September 1, 2017, the cross motion was untimely for the same reasons as stated above and similarly should not have been considered by the Civil Court.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decided on November 15, 2019

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

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Fishkin & Associates (Thomas G. Carton and Ross Van Tuyl 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 December 7, 2017. 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 seeks to recover the unpaid balance of a claim for services rendered on February 9, 2015. Defendant moved for summary judgment dismissing the complaint on the ground that the disputed medical services had been rendered in New Jersey, and that defendant had fully paid the claim in accordance with the New Jersey Automobile Medical Fee Schedule (see 11 NYCRR 68.6 [b], [c]). Plaintiff opposed the motion. By order entered December 7, 2017, the Civil Court granted defendant’s motion.

While plaintiff argues that defendant failed to establish that it had timely mailed its denial of claim form, 11 NYCRR 65-3.8 (g) (1) (ii), effective April 1, 2013 (see 11 NYCRR 65-3.8 [g] [2]), provides that “no payment shall be due for . . . claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (see also Oleg’s Acupuncture, P.C. v Hereford Ins. [*2]Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). As the services at issue were provided on February 9, 2015, defendant was not required to establish that it had timely denied the claim in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; Precious Acupuncture Care, P.C. v Hereford Ins. Co., 58 Misc 3d 147[A], 2018 NY Slip Op 50042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Defendant supported its motion for summary judgment dismissing the complaint with an affidavit by a certified medical coder from a third-party company retained by defendant. Upon a review of the record, we find that the coder’s affidavit was sufficient to establish, prima facie, that defendant had fully paid the claim submitted by the New Jersey provider in accordance with the New Jersey medical fee schedule (see 11 NYCRR 68.6 [b], [c]). In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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