[*1]

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

Lewis Brisbois Bisgaard & Smith, LLP (Nicholas P. Hurzeler and Kristen Carroll of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate an arbitration award dated April 28, 2017, in which Hereford Insurance Company cross-petitioned to confirm the award, Hereford Insurance Company appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated March 30, 2018. The order granted the petition and denied the cross petition.

Ordered that the order is affirmed, with costs.

On January 28, 2014, a tractor owned by Cowan Systems, LLC (hereinafter Cowan), operated by Juan C. Aguilar, and insured by the petitioner, Zurich American Insurance (hereinafter Zurich), collided with the driver’s side of a parked vehicle occupied by Carlos Tapia and insured by the appellant, Hereford Insurance Company (hereinafter Hereford). Tapia, who allegedly sustained various injuries as a result of the accident, received $20,018.17 in no-fault benefits from Hereford.

In October 2014, Tapia commenced an action (hereinafter the action) against Cowan, Aguilar, and another defendant in the Supreme Court, Queens County, to recover damages for injuries allegedly sustained as a result of the accident. In or around December 2014, the action was removed to the United States District Court for the Eastern District of New York. The action proceeded to trial, and on December 15, 2016, a unanimous jury found that Tapia did not demonstrate by a preponderance of the evidence that the accident caused him to sustain injury.

Meanwhile, on or about November 24, 2015, via compulsory arbitration pursuant to Insurance Law § 5105, Hereford sought reimbursement from Zurich for the no-fault benefits paid to Tapia. At the arbitration hearing, Zurich submitted into evidence, inter alia, a copy of the jury verdict sheet from the action. Nonetheless, the arbitrator, upon determining that Zurich’s insured was 100 percent at fault for the accident for failure to yield and that Hereford had proven all of its damages, awarded Hereford $20,018.17.

Subsequently, Zurich commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending that the award was arbitrary and capricious insofar as the arbitrator failed to give preclusive effect to the jury verdict from the action. Hereford cross-petitioned to confirm the award, contending that there was evidentiary support and a rational basis for the award and that it was not improper for the arbitrator not to give preclusive effect to the jury verdict insofar as Hereford was not a party to the action. The Supreme Court granted Zurich’s petition and denied Hereford’s cross petition. Hereford appeals. We affirm.

“Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrators’ determination is subject to ‘closer judicial scrutiny’ under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties” (Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634 [internal quotation marks omitted]). “In addition, article 75 review questions whether the decision was rational or had a plausible basis” (id. [internal quotation marks omitted]).

The arbitration award herein was irrational and arbitrary and capricious insofar as the arbitrator failed to give preclusive effect to the jury’s determination that Tapia had failed to demonstrate by a preponderance of the evidence that the accident caused him to sustain injury (see Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644, 645 [2011]; Matter of State of N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269, 1271 [2007]). Significantly, the jury’s determination that Tapia did not demonstrate by a preponderance of the evidence that the accident caused him any injury precluded Hereford from recovering from Zurich via mandatory arbitration the amount of no-fault benefits paid by Hereford to Tapia with respect to the accident (see Insurance Law § 5105 [a]; see generally Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). Here, “the arbitrator failed to consider this provision of law in light of the jury’s verdict” (Matter of G.E.I.C.O. Gen. Ins. Co. v Canal Ins. Co., 189 Misc 2d 467, 469 [Civ Ct, Queens County 2001]; see New York City Tr. Auth. v GEICO Gen. Ins. Co., 46 Misc 3d 706, 709 [Civ Ct, NY County 2014]).

Contrary to Hereford’s contention, even though it was not a party to the action, Hereford, as subrogee, stands in place of Tapia, its subrogor, “such that it can be reasonably said that the two are in ‘privity,’ sufficient to bind [Hereford] by the prior judgment to which it was not a party of record” (Matter of G.E.I.C.O. Gen. Ins. Co. v Canal Ins. Co., 189 Misc 2d at 469, citing Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]).

Hereford’s remaining contention regarding Zurich’s failure to submit to the arbitrator and the Supreme Court a copy of the judgment in the action is improperly raised for the first time on appeal. Rivera, J.P., Austin, Roman and Duffy, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY (Roman Kravchenko of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park, NY (Eli Shmulik of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered January 18, 2018. The order granted the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.

Ordered that the order is affirmed, with costs.

In December 2016, the plaintiff, a no-fault insurance carrier, commenced this action pursuant to Insurance Law § 5106 (c) for a de novo adjudication of a dispute regarding its denial of the defendant’s claim for no-fault insurance benefits for medical services rendered to its assignor. Prior thereto, an arbitrator had determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

After the defendant failed to timely appear or answer the complaint in this action, the plaintiff moved for leave to enter a default judgment. In an order entered March 13, 2017, the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment. The court subsequently issued a default judgment dated July 31, 2017.

Thereafter, in September 2017, the defendant moved pursuant to CPLR 5015 (a) (1) to vacate its default. The Supreme Court granted the motion, and the plaintiff appeals.

A defendant seeking to vacate its default pursuant to CPLR 5015 (a) (1) on the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]). Here, the defendant demonstrated a reasonable excuse for its default (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746). Moreover, although certain of the evidence submitted by the defendant to demonstrate a potentially meritorious defense was not in admissible form (see generally OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716 [2017]; King v King, 99 AD3d 672, 673 [2012]), the defendant demonstrated a potentially meritorious defense to the action by attaching to its moving papers copies of the arbitration award in which the arbitrator determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees, as well as copies of arbitration materials reflecting that the plaintiff had appealed the award to a master arbitrator, who affirmed the award. In light of the defendant setting forth evidence that it had previously prevailed before an arbitrator on the merits of its defense, the defendant demonstrated a potentially meritorious defense to the action (see Rosenzweig v Gubner, 2018 NY Slip Op 32393[U], *7-8 [Sup Ct, Kings County 2018]; Matter of Charny [Gliksman], 2002 NY Slip Op 40004[U], *11 [Sup Ct, Kings County 2002]; see generally Bevona v Blue Star Realty Corp., 264 AD2d 586, 587 [1999]; Lawyers Coop. Publ. v Scott, 255 AD2d 952, 952 [1998]; Simpson v Mal Serv. Corp., 205 AD2d 419, 419 [1994]). Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.

The plaintiff’s remaining contentions are without merit. Scheinkman, P.J., Dillon, Maltese and LaSalle, JJ., concur.

[*1]

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

Thomas Torto, New York (Jason Levine of counsel), for respondent.

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered June 22, 2017, which awarded attorneys’ fees in the amount of $749.38, unanimously reversed, on the law, without costs, the award vacated, and the matter remanded for a calculation of reasonable attorneys’ fees in accordance with 11 NYCRR 65-4.10 (j) (4).

The court failed to consider 11 NYCRR 65-4.10 (j) (4), which applies to this appeal of a master arbitration award. Instead, the court applied 11 NYCRR 65-4.6, the regulation applicable to attorneys’ fee awards at an initial arbitration, and calculated the award as 20% of the arbitration demand of $3,746, awarding $749.38.

Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “ ’the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations’ ” (Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology, 143 AD3d 536, 537 [1st Dept 2016]). Here, in a proceeding for judicial review of an award by a master arbitrator, the attorneys’ fee award “shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017], citing Insurance Department Regulations [11 NYCRR] § 65-10 [j] [4]).

Because this is an appeal from a master arbitration award, we remand the matter for a calculation of fees in accordance with 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]). We note that the fees would only apply to this appeal.

In addition, we reject as unpreserved appellant’s claims that it is entitled to further fees for the underlying arbitration under 11 NYCRR 65-4.6 (c) or (d). Concur—Friedman, J.P., Gische, Tom, Webber, Gesmer, JJ.

[*1]

Peter C. Merani, P.C., New York, NY (Eric M. Wahrburg of counsel), for appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), dated December 9, 2016. The order denied the plaintiff’s motion for summary judgment on the complaint and, upon searching the record, awarded summary judgment to the defendant.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that the amount of no-fault insurance benefits sought by the defendant was not in accordance with the workers’ compensation fee schedule, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof searching the record and awarding summary judgment to the defendant; as so modified, the order is affirmed, with costs payable to the plaintiff.

This action pursuant to Insurance Law § 5106 (c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group. The defendant, as assignee of Krull, submitted a claim to the plaintiff insurer for no-fault insurance benefits for the surgery and related care. The plaintiff denied the claim. The defendant submitted the matter to arbitration. The arbitrator determined that the defendant was entitled to no-fault compensation in the principal sum of $11,352.46, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

On August 19, 2015, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of the defendant’s claims for no-fault insurance benefits. The plaintiff then moved for summary judgment on the complaint. In an order dated December 9, 2016, the Supreme Court denied the motion and, upon searching the record, awarded summary judgment to the defendant, concluding that the master arbitrator had properly affirmed the award of benefits to the defendant in the principal sum of $11,352.46, plus interest and attorney’s fees. The plaintiff appeals.

Insurance Law § 5106 (c) permits a de novo adjudication of a no-fault insurance claim where the master arbitrator’s award is $5,000 or greater, exclusive of interest and attorney’s fees (see 11 NYCRR 65-4.10 [h] [1] [ii]; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 577 [1987]). Here, we agree with the Supreme Court’s denial of that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull’s surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U] [App Term, 1st Dept 2013]; cf. AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [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]). In light of the plaintiff’s failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770).

We agree with the Supreme Court’s determination that the plaintiff established its prima facie entitlement to judgment as a matter of law on that branch of its motion which was for summary judgment on so much of the complaint, as, in effect, sought a determination that the amount of the benefits sought by the defendant was not in accordance with the workers’ compensation fee schedule (see Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept 2018]; Compas Med., P.C. v 21st Century Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51228[U] [App Term, 2d Dept 2017]; Renelique v Allstate Ins. Co., 57 Misc 3d 126[A], 2017 NY Slip Op 51141[U] [App Term, 2d Dept 2017]; Dynasty Med. Care, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A], 2017 Slip Op 50597[U] [App Term, 2d Dept 2017]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept 2015]). Contrary to the court’s determination, however, the defendant, in opposition to that prima facie showing, failed to raise a triable issue of fact (see Renelique v Allstate Ins. Co., 57 Misc 3d 126[A] [2017]; Dynasty Med. Care, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A] [2017]). Accordingly, that branch of the plaintiff’s motion should have been granted.

Since the defendant’s submissions were not sufficient to establish that the arbitrator and the master arbitrator were correct in awarding the defendant no-fault insurance benefits in the principal sum of $11,352.46, the Supreme Court should not have searched the record and awarded summary judgment to the defendant. Rivera, J.P., Austin, Cohen and Iannacci, JJ., concur.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park (Eli Shmulik of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 11, 2018, which denied Global Liberty Insurance Co.’s (Global) petition to vacate the master arbitrator’s award, dated August 15, 2018, affirming the lower arbitrator’s award in favor of respondent, dated April 17, 2018, dismissed the proceeding and confirmed the award, unanimously reversed, on the law, without costs, the petition granted, the award vacated, and the matter remanded to the lower arbitrator for a new arbitration to be conducted consistent with this decision.

Respondent submitted to Global a claim for payment under the No-Fault Law (Insurance Law art 51) in the amount of $5,813,81 for arthroscopic surgery respondent had performed on Global’s insured. Global approved the claim only up to the amount of $2,980.44, basing its position on the American Medical Association’s CPT Assistant newsletter.^[FN*] After Global partially paid the claim, respondent commenced a no-fault arbitration, seeking payment of the $1,342.52 balance. The lower arbitrator, in rendering an award to respondent in that amount, refused to consider CPT Assistant, on which Global had relied, based on the arbitrator’s view that CPT Assistant was “not authorized by statute or regulation applicable to the No-Fault Law.” On Global’s appeal, the master arbitrator affirmed the lower arbitrator’s award. Thereafter, Supreme Court denied Global’s petition to vacate the award. On Global’s appeal, we reverse and grant the petition.

The Official New York Workers’ Compensation Medical Fee Schedule, promulgated by the chair of the Workers’ Compensation Board, directs users to “refer to the CPT book for an explanation of coding rules and regulations not listed in this schedule.” The CPT book, in turn, expressly makes reference to CPT Assistant. By both statute and regulation, the fee schedules established by the chair of the Workers’ Compensation Board are expressly made applicable to claims under the No-Fault Law (see Insurance Law § 5108; 11 NYCRR 68.0, 68.1 [a] [1]; see generally Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63-64 [2d Dept 2015], affd 27 NY3d 22 [2016]). Accordingly, because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers’ Compensation Medical Fee Schedule applicable to this claim under the No-Fault Law, the award rendered without consideration of CPT Assistant is incorrect as a matter of law (see 11 NYCRR 65-4.10 [a] [4]). We therefore grant the petition to vacate the award and remand the matter to the lower arbitrator for a new arbitral proceeding, at which relevant portions of CPT Assistant shall be given due consideration. Concur—Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.

Footnotes

Footnote *:CPT is an acronym for Current Procedural Terminology.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Nadia Rahman of counsel), for appellant.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 3, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment against defendants-respondents and a default judgment against the remaining defendants on its complaint seeking a declaration of noncoverage, and for leave to amend the complaint to add Yang Zhi Gang, MD and Jamron Colin as defendants, unanimously modified, on the law and the facts, to grant the motion for leave to amend, and otherwise affirmed, without costs.

Plaintiff seeks a declaration that defendant Sloan Tyrell failed to appear at duly noticed medical examinations (IMEs), which constitutes a failure of a condition precedent to receipt of insurance benefits for the motor vehicle accident by any parties potentially entitled to benefits under Insurance Law § 5103 or their assignees (11 NYCRR 65-1.1 [a]; see generally Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). In support, plaintiff submitted an attorney’s affirmation annexing documents and affidavits of its claims adjuster and an employee of a company that handles plaintiff’s no fault notice mailings, and an affirmation of the doctor whom plaintiff designated to conduct the IME. Contrary to defendants’ contentions, the court properly considered sworn statements bearing captions of other proceedings arising out of the same accident (see CPLR 2101 [f]).

Plaintiff did not proffer sufficient evidence to establish prima facie that it provided the insured with proper notice of the location of the scheduled examinations, since the copies of the letters submitted through an attorney affirmation appear to show an address for the doctor’s office that differed from the office address provided by the doctor in her affirmation. Plaintiff’s effort to correct the deficiency by submitting “clearer” copies in reply was insufficient, since there is no evidence that the insured received a clear copy.

As for the motion for leave to amend, plaintiff submitted a proposed amended complaint setting forth a cognizable cause of action against the proposed additional defendants, who allegedly provided the same claimant with services in connection with the same accident. Thus permissive joinder was appropriate (CPLR 1002 [b]; see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536, 537 [2d Dept 2002]), and, absent any showing of prejudice or undue delay, leave to amend should have been freely granted (CPLR 3025 [b]; Fellner v Morimoto, 52 AD3d 352, 354 [1st Dept 2008]). Concur—Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn, NY (Maksim Leyvi and Andrew S. Fisher of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, NY (Melanie J. Rosen and Debra Ruderman of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims submitted by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated May 26, 2017. The order denied the defendant’s motion pursuant to CPLR 317 and 5015 (a) (1) to vacate a judgment of the same court entered September 3, 2015, upon its failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

The plaintiffs commenced this action, inter alia, for a judgment declaring that they are not obligated to pay certain no-fault claims submitted by the defendant on the grounds that the defendant failed to comply with conditions precedent to coverage or to verify its claims. The plaintiffs served the defendant by delivering a copy of the summons and complaint to the Secretary of State pursuant to Business Corporation Law § 306. After the defendant failed to answer or appear, the plaintiffs moved for entry of a default judgment. The Supreme Court granted the plaintiffs’ unopposed motion, and a default judgment was entered on September 3, 2015. On September 10, 2015, the plaintiffs served the defendant with a copy of the judgment with notice of entry. In January 2017, the defendant moved pursuant to CPLR 317 and 5015 (a) (1) to vacate the judgment entered September 3, 2015. The court denied the motion, and the defendant appeals.

Pursuant to CPLR 317, a defaulting defendant who was “served with a summons other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108 [2017]; Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975 [2014]). Service on a corporation through delivery of process to the Secretary of State is not “personal delivery” to the corporation (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 142; Booso v Tausik Bros., LLC, 148 AD3d at 1108). A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 726 [2016]; Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788 [2012]).

Here, the defendant’s principal submitted an affidavit in support of the motion in which she denied receipt of a copy of the summons and complaint and affirmed that she did not have notice of the action until in or about January 2017. However, the address she listed as the defendant’s office was the same as the address that was on file with the Secretary of State. In addition, affidavits of service submitted by the plaintiffs demonstrated that notice of service and other documents in this action were mailed to that address. Under those circumstances, the conclusory and unsubstantiated denial of receipt of the summons and complaint was insufficient to establish that the defendant did not have actual notice of the action in time to defend (see Stevens v Stepanski, 164 AD3d 935, 937 [2018]; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 726; Capital Source v AKO Med., P.C., 110 AD3d 1026, 1027 [2013]; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453, 454 [2000]).

Similarly, the affidavit of the defendant’s principal was insufficient to establish a reasonable excuse for the defendant’s default pursuant to CPLR 5015 (a) (1) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141-142; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 726; Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975). In addition, that branch of the motion which was pursuant to CPLR 5015 (a) (1) was untimely, since the motion was not made within one year after the defendant was served with a copy of the judgment with notice of entry (see CPLR 5015 [a] [1]; Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 760 [2013]).

In light of the foregoing, it is unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 317 or 5015 (a) (1) (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d at 726; Capital Source v AKO Med., P.C., 110 AD3d at 1027).

The defendant’s remaining contentions are improperly raised for the first time on appeal (see Collins v 7-11 Corp., 146 AD3d 931, 932 [2017]).

Accordingly, we agree with the Supreme Court’s denial of the defendant’s motion pursuant to CPLR 317 and 5015 (1) (1) to vacate the judgment. Rivera, J.P., Cohen, Miller and Barros, JJ., concur.

[*1]

Hollander Legal Group, P.C. (Harris J. Zakarin, P.C., Melville, NY, of counsel), for appellant.

Aleksandr Vakarev, Brooklyn, NY (Harlan Wittenstein of counsel), for respondent.

In an action to recover no-fault benefits for medical expenses, the defendant appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated October 26, 2017. The order, inter alia, in effect, denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the complaint is granted.

On October 3, 2014, the plaintiff allegedly was injured when he was struck by a motor vehicle owned by George W. Nellen. The defendant was Nellen’s motor vehicle insurance carrier at the time of the accident. The plaintiff submitted an application for no-fault benefits for medical expenses to the defendant. The defendant denied the plaintiff’s application on the ground that the plaintiff’s injuries were not causally related to the alleged motor vehicle accident.

The plaintiff commenced this action to recover no-fault benefits for medical expenses. After issue was joined, the defendant moved pursuant to CPLR 3212, 3211 (a) (1), (3) and (7) to dismiss the complaint. The defendant alleged, inter alia, that the plaintiff had assigned his eligibility to receive no-fault benefits from the defendant to various medical providers, and, thus, he had no standing to maintain the action. The Supreme Court denied those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (1) and (7), and in effect denied those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (3) and 3212, on the grounds that the motion was premature due to outstanding disclosure. The defendant appeals.

The defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assigned his right to no-fault benefits to 10 different medical providers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209 [2018]).

We disagree with the Supreme Court’s denial of the defendant’s motion without prejudice with leave to renew due to outstanding disclosure. The plaintiff failed to establish that discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendant (see CPLR 3212 [f]; Portalatin v City of New York, 165 AD3d 1302 [2018]; Williams v Spencer-Hall, 113 AD3d 759, 760 [2014]; Boorstein v 1261 48th St. Condominium, 96 AD3d 703, 704 [2012]).

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint. Mastro, J.P., Cohen, Maltese and LaSalle, JJ., concur.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

In an action for a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered October 30, 2017. The order denied the plaintiff’s unopposed motion for leave to enter a default judgment against the defendant.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for leave to enter a default judgment against the defendant is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas.

The plaintiff, a no-fault insurance carrier, commenced this action seeking a de novo adjudication of an insurance dispute concerning the denial of a no-fault claim involving the defendant (see Insurance Law § 5106 [c]). The plaintiff sought a judgment declaring that the plaintiff is not obligated to pay the claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, on the grounds that the services were not medically necessary, were not related to the subject motor vehicle accident, and/or were billed in excess of the fee schedule. The defendant had been awarded more than $5,000 against the plaintiff as a result of a master arbitration award.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to answer the complaint or appear in this action. The defendant failed to oppose the motion. The Supreme Court denied the plaintiff’s motion on the basis that the master arbitration award confirming an original arbitration award was supported by evidence in the record, was rationally based, and was not arbitrary or capricious. The plaintiff appeals.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to file proof of (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) the other party’s default (see CPLR 3215 [f]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768, 769 [2016]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via the Secretary of State (see Business Corporation Law §§ 306 [b]; 1513; CPLR 311 [a] [1]), and an additional copy of the summons and complaint upon the defendant pursuant to CPLR 3215 (g) (4). In further support, the plaintiff submitted its attorney’s affirmation, inter alia, attesting to the defendant’s failure to answer or appear in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). It also submitted, inter alia, a copy of the complaint verified by its attorney (see CPLR 105 [u]; 3020 [d] [3]; 3215 [f]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195 [2017]; Martin v Zangrillo, 186 AD2d 724 [1992]), its expert’s affirmed peer review, the arbitration award in excess of $5,000, and the master arbitration award confirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770). The defendant failed to oppose the plaintiff’s motion (see Fried v Jacob Holding, Inc., 110 AD3d at 60).

Accordingly, the plaintiff’s motion for leave to enter a default judgment against the defendant should have been granted. Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas (see Lanza v Wagner, 11 NY2d 317, 334 [1962]). Mastro, J.P., Balkin, LaSalle and Connolly, JJ., concur.

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Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 29, 2016, against petitioner in favor of respondent, and bringing up for review an order, same court and Justice, entered January 12, 2016, which denied petitioner’s motion to vacate an arbitral award and remand to the lower arbitrator for a de novo hearing, and granted respondent’s motion to confirm the award, unanimously reversed, on the law, without costs, the judgment vacated, petitioner’s motion granted, and respondent’s motion denied.

Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). Concur—Friedman, J.P., Renwick, Webber, Kahn, Kern, JJ.