[*1]

Khavinson & Associates, P.C., Brooklyn, N.Y. (Thomas T. Kranidas of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action, in effect, pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated October 30, 2013, which granted the defendant’s motion pursuant to CPLR 3211 (a) (2) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction. The complaint, in effect, sought a de novo determination of the plaintiff’s no-fault claim pursuant to Insurance Law § 5106 (c). “The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Trust, 16 AD3d 457, 457 [2005]). Here, the master arbitrator, by vacating the arbitrator’s award in its entirety, effectively made no monetary award, and, because the master arbitrator’s award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo (see id.; General Acc. Fire & Life Ins. Co. v Avlonitis, 156 AD2d 424, 424 [1989]; Matter of Sansiviero v Royal Globe Ins. Co., 109 AD2d 840, 842 [1985]). Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.

[*1]

Burke, Gordon, Conway & Loccisano, White Plains (Philip J. Dillon of counsel), for appellants.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 4, 2014, which, to the extent appealed from, denied plaintiffs’ motion for a default judgment seeking a declaration that they were not obligated to pay defendant for the submitted claims at issue, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiffs are not obligated to pay defendant for the claims at issue.

Plaintiffs are no-fault automobile insurers in New York State. Defendant is a provider of durable medical equipment in New York City. Defendant provides such equipment to claimants under plaintiffs’ policies. Plaintiffs came to suspect that defendant was over-billing them for the equipment. Accordingly, as was their right under the policy and the relevant regulations (11 NYCRR 65-1.1 et seq.), plaintiffs requested an examination under oath (EUO) of defendant in order to verify the billings.

Defendant never appeared for the scheduled EUOs. Plaintiffs then commenced this declaratory judgment action. Defendant never answered or appeared. Plaintiffs then moved for a default judgment. Defendant failed to oppose the motion. The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs. We note that defendant has not submitted opposition to the instant appeal.

We reverse. The affirmation of plaintiffs’ counsel submitted in support of plaintiffs’ motion for default clearly set forth the mailing procedures to defendant. Indeed, counsel represented, under penalty of perjury, that he personally verified the mailing process for every EUO letter sent. This was adequate proof that the EUO letters were mailed to defendant (see e.g. Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Concur—Tom, J.P., Andrias, Feinman, Gische and Kapnick, JJ.

[*1]

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

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 24, 2014. The order and judgment, among other things, denied that part of plaintiff’s motion for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center and Kimba Medical Supply, LLC.

It is hereby ordered that the order and judgment so appealed from is unanimously modified on the law by granting that part of the motion for leave to enter a default judgment against defendant Cliffside Park Imaging & Diagnostic Center and as modified the order and judgment is affirmed without costs.

Memorandum: Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC (Kimba). Defendants Naz and Fatima Tahir made claims for no-fault benefits arising from injuries they allegedly sustained in an automobile accident covered by an insurance policy issued to plaintiff’s policyholder. Naz and Tahir assigned their rights to collect no-fault benefits to certain medical providers, including Cliffside and Kimba, each of which made claims for services rendered to Naz and Tahir as a result of the alleged accident. Plaintiff disclaimed coverage based on the failure of Naz and Tahir to provide timely written notice of the accident pursuant to the insurance policy, and thereafter commenced this action seeking a declaration that there is no coverage. Plaintiff subsequently moved for leave to enter a default judgment against each defendant on the ground that the summons and verified complaint had been properly served and defendants did not timely serve an answer or otherwise appear in the action. Supreme Court denied the motion with respect to Naz, Cliffside, and Kimba, and otherwise granted the motion.

“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]; see CPLR 3215 [f]). Here, plaintiff submitted sufficient proof of the facts constituting its claim through the affidavit of a claims representative establishing that Tahir and Naz failed to satisfy the notice requirement of the insurance policy, which constitutes a failure to comply with a condition precedent and vitiates the contract as a matter of law (see generally New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592-593 [2011]; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322 [2007]). Plaintiff also submitted proof of default in the form of “an affirmation from its attorney regarding . . . defendant[s’] default in appearing and answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726, 726 [2006]).

[*2] We further conclude, however, that plaintiff submitted sufficient proof of service of process, the remaining required element of proof, only with respect to Cliffside, a corporation, and thus the court erred in denying plaintiff’s motion to that extent. We therefore modify the order and judgment accordingly. Pursuant to CPLR 311 (a), “personal service on a corporation may be accomplished by, inter alia, delivering the summons ‘to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service’ ” (Rosario v NES Med. Servs. of N.Y., P.C., 105 AD3d 831, 832 [2013]). Here, “[t]he process server’s affidavit, which stated that the corporate defendant was personally served by delivering a copy of the summons and complaint to its ‘[authorized] agent’ and provided a description of that person, constituted prima facie evidence of proper service pursuant to CPLR 311 (a) (1)” (McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562, 562 [2007]; see Miterko v Peaslee, 80 AD3d 736, 737 [2011]; see generally Halas v Dick’s Sporting Goods, 105 AD3d 1411, 1413-1414 [2013]).

Contrary to plaintiff’s contention, the court properly denied its motion with respect to Naz, who was allegedly served by the “nail and mail” method of service. CPLR 308 (4) allows that method of service only “when service pursuant to CPLR 308 (1) and (2) cannot be made with due diligence” (Austin v Tri-County Mem. Hosp., 39 AD3d 1223, 1224 [2007]) and, although a process server’s affidavit of service ordinarily constitutes prima facie evidence of proper service, here the process server’s affidavit submitted by plaintiff fails to demonstrate the requisite due diligence (see D’Alesandro v Many, 137 AD2d 484, 484 [1988]; see generally Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929-930 [2008]). The affidavit failed to indicate whether there was an attempt to effectuate service at Naz’s actual “dwelling place or usual place of abode” (CPLR 308 [4]), and there is no indication that the process server made genuine inquiries to ascertain Naz’s actual residence or place of employment (see Prudence v Wright, 94 AD3d 1073, 1074 [2012]; Earle v Valente, 302 AD2d 353, 353-354 [2003]).

We also reject plaintiff’s contention that the court erred in denying its motion with respect to Kimba, a limited liability company. Plaintiff alleged that Kimba was served pursuant to Limited Liability Company Law § 304. That statute is substantively identical to Business Corporation Law § 307, and both statutes apply to foreign business entities not authorized to do business in New York. We conclude that, just as strict compliance with the procedures set forth in Business Corporation Law § 307 is required pursuant to Flick v Stewart-Warner Corp. (76 NY2d 50, 54-55, 57 [1990], rearg denied 76 NY2d 846 [1990]), strict compliance is likewise required for the procedures set forth in Limited Liability Company Law § 304 (see Elzofri v American Express Co., 29 Misc 3d 898, 901 [2010]). Here, plaintiff failed to establish that it strictly complied with the filing requirements of Limited Liability Company Law § 304 (e). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

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

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant’s failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.

The reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiff’s handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition. Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels and Clark, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, N.Y. (John E. McCormack and Kevin Mattei of counsel), for respondents.

In an action for a judgment declaring that the plaintiffs are not obligated to provide insurance coverage for any of the no-fault claims submitted to it by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered May 8, 2013, which granted the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the complaint is denied.

The defendant allegedly provides durable medical equipment (hereinafter DME) and supplies to persons who are involved in motor vehicle accidents in New York State. The defendant, upon the assignment by the injured persons of no-fault insurance benefits, submitted bills to the plaintiffs seeking reimbursement for the DME provided to the injured persons. State regulation 11 NYCRR 65-1.1 and the applicable insurance policies provided that, for each of the claims submitted by the defendant for reimbursement, upon the plaintiffs’ request, the eligible insured person or that person’s assignee or representative shall: (1) execute, under oath, written proof of the claim, and (2), as may reasonably be required, submit to examinations under oath (hereinafter EUOs) by any person named by the plaintiffs.

The plaintiffs launched an investigation into the defendant’s billing practices in an attempt to verify the documented cost of the DME. The plaintiffs alleged that their investigation could not confirm the defendant’s existence at the claimed location provided on its billing statements. Furthermore, the plaintiffs alleged that the defendant routinely billed under miscellaneous codes for DME despite the fact that all such DME items had legitimate codes that should have been utilized for billing purposes, and that the defendant failed to submit any wholesale supply invoices or any documentation identifying the wholesale company it utilized so as to substantiate its documented costs.

In order to investigate these issues, the plaintiffs requested that the defendant submit [*2]to EUOs and advised that compliance was a condition precedent to coverage. They also made verification requests for purchase receipts, cancelled checks, wholesale invoices, information regarding the name, model, manufacture, serial number, and age of the DME, and the physician referral for the DME. The plaintiffs alleged that none of the information requested for purposes of claim verification was received, and the defendant did not appear for the scheduled EUOs. As a result, the plaintiffs issued denials of the defendant’s claims on the ground that the defendant violated policy conditions, i.e., the defendant failed to provide the requested information and to appear for the EUOs.

The plaintiffs commenced this action for a judgment declaring that they are not obligated to provide insurance coverage for any of the no-fault claims submitted to it by the defendant on the ground that the defendant failed to comply with conditions precedent to reimbursement under the no-fault laws and regulations and insurance laws of this state. After the defendant interposed its answer, the plaintiffs successfully moved for summary judgment on the complaint declaring that they are not obligated to provide insurance coverage for any of the defendant’s claims.

The defendant contends that the plaintiffs failed to establish, prima facie, that the denials of claims were timely and properly mailed to it. Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013] [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]). “ ’The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed’ ” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). However, in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a denial of claim is always properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 829-830).

Here, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the denial of claim forms to the defendant. The affidavit of Joseph M. Andre, the Medical Claims Representative assigned to this matter, asserted that for denials mailed after August 17, 2010, as is relevant herein, all items were mailed through an automated system, and explained how documents were identified. However, Andre did not state, in his affidavit, how the envelopes were addressed so as to ensure that the address was correct or whether the envelope was addressed by the automated system or by an employee. He also did not state how and when the envelopes, once sealed, weighed, and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier or messenger service to be delivered. Therefore, Andre’s affidavit was insufficient to establish, as a matter of law, that the denial of claim forms were timely and properly mailed to the defendant (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2007]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 228 [1985]; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage, summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Accordingly, the Supreme Court erred in granting the plaintiffs’ motion for summary judgment on the complaint declaring that they are not obligated to provide insurance coverage for any of the defendant’s claims.

In light of our determination, the defendant’s remaining contentions have been rendered academic. Mastro, J.P., Chambers, Austin and Miller, JJ., concur.

[*1]

Marshall & Marshall, PLLC, Jericho (Jeffrey D. Kadushin of counsel), for appellant.

Dwyer & Taglia, New York (Joshua T. Reece of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered February 14, 2014, which, upon granting reargument, vacated the amended order, same court and Justice, entered June 6, 2013, confirming an arbitration award in favor of petitioner and denying respondent’s cross petition seeking to vacate the arbitration award, and granted the cross petition, unanimously affirmed, without costs.

Respondent made a prima facie showing that the offending vehicle in this no-fault arbitration was insured by Global Liberty Insurance of New York, by submitting a Department of Motor Vehicles expansion, indicating that Global had insured the vehicle subsequent to respondent’s coverage (see Matter of Eagle Ins. Co. v Kapelevich, 307 AD2d 927 [2d Dept 2003], lv denied 1 NY3d 503 [2003]; Matter of State Farm Mut. Auto. Ins. Co. v Youngblood, 270 AD2d 493 [2d Dept 2000]). By operation of Vehicle and Traffic Law § 313 (1) (a), the subsequent coverage terminated respondent’s coverage of the same vehicle as of the effective date and hour of Global’s coverage, irrespective of whether respondent had otherwise complied with the cancellation requirements of the Vehicle and Traffic Law (see Employers Commercial Union Ins. Co. of N.Y. v Firemen’s Fund Ins. Co., 45 NY2d 608, 611 [1978]). Thus, it was arbitrary and capricious for the arbitrator to find that respondent was the insurer of the vehicle at the time of the accident because it failed to demonstrate that it had properly cancelled its policy. The [*2]arbitration award was also in excess of the arbitrator’s authority, where it awarded coverage when none existed (cf. Countrywide Ins. Co. v Sawh, 272 AD2d 245 [1st Dept 2000]; Matter of State Farm Ins. Co. v Credle, 228 AD2d 191 [1st Dept 1996]). Concur—Friedman, J.P., Renwick, Moskowitz, Richter and Clark, JJ.

Decided on March 3, 2015
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.

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

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered July 2, 2014, which denied the petition seeking to vacate the determination of the Master Arbitrator, dated November 6, 2013, affirming the award of the lower arbitrator in this no-fault arbitration, unanimously reversed, on the law, without costs, the petition granted, the arbitration award vacated, and the matter remanded for a new arbitration hearing before a different arbitrator.

The no-fault arbitrator gave no weight to an independent medical examination (IME) report, prepared by a chiropractor and submitted by petitioner, because it was not notarized pursuant to CPLR 2106. The Master Arbitrator, in reviewing the award, deferred to the no-fault arbitrator’s determination of the weight to be given to the evidence, as did the IAS court.

We find that the no-fault arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see 11 NYCRR § 65-4.5[o] [1] [“The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.”], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator’s determination.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2015

CLERK

[*1]

Mura & Storm, PLLC, Buffalo, N.Y. (Roy A. Mura of counsel), for appellant.

Gregory W. Bagen, Brewster, N.Y., for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Putnam County (Nicolai, J.), entered August 16, 2010, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $210,587.30, comprising $72,000 in principal arrears and $138,587.30 in accrued compound interest. Justice Rivera has been substituted for former Justice Angiolillo, Justice Skelos has been substituted for former Justice Belen, and Justice Dillon has been substituted for former Justice Lott (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff compound interest in the sum of $138,587.30; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith, and the entry of an appropriate amended judgment thereafter.

On August 9, 2004, Sharon Heidei, also known as Sharon Rollman (hereinafter the decedent) was injured in an automobile accident. On November 13, 2004, the decedent filed a claim with the defendant, Hereford Insurance Company, to recover for basic economic loss and additional personal injury protection benefits. The defendant thereafter disclaimed coverage. On October 17, 2008, the decedent commenced this action, seeking to recover those benefits. On August 16, 2010, after a nonjury trial, the Supreme Court entered a judgment in favor of the decedent and against the defendant. The defendant appeals.

On October 28, 2011, approximately one month after oral argument on this appeal was heard, the decedent died, and the matter was stayed by operation of CPLR 1021, pending substitution of the decedent’s personal representative. In 2012, the defendant petitioned the Surrogate’s Court, Putnam County, to appoint an administrator of the decedent’s estate. On July 9, 2014, the Surrogate’s Court granted the defendant’s petition, and appointed Putnam County Commissioner of Finance William J. Carlin, Jr., as the administrator of the decedent’s estate. By decision and order dated November 21, 2014, this Court granted the defendant’s motion to substitute Carlin as the respondent in place of the decedent, and lifted the stay. Pursuant to the terms of that order, the appeal was subsequently deemed to have been submitted on the original briefs.

Since three of the four justices who heard oral argument were no longer on the bench [*2]when the stay was lifted, three other justices of this Court have been substituted for them (see 22 NYCRR 670.1 [c]).

In connection with policies of automobile insurance, Insurance Law § 5102 (d) defines “basic economic loss” as up to $50,000 per person for combined expenses incurred by a covered person as a consequence of an automobile accident for medical, hospital, surgical, dental, and similar charges, loss of earnings, and other reasonable and necessary expenses. Insurance Law § 5103 (a) mandates that all automobile insurance policies written in New York provide for such coverage, commonly known as no-fault coverage. The defendant’s contention that, in light of the nature of the underlying accident, the plaintiff was not a covered person under the no-fault provisions of the subject automobile insurance policy is not properly before this Court, since the defendant is raising it for the first time on appeal (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]). Moreover, this defense does not raise a pure question of law apparent on the face of the record that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $50,000 in unpaid basic no-fault benefits.

The automobile insurance policy issued by the defendant also provided optional additional personal injury protection, with limits of $150,000, for covered persons who sustained extended economic loss as a consequence of an automobile accident. This coverage is commonly known as excess no-fault coverage. The defendant failed to preserve for appellate review its contention that the plaintiff was ineligible for coverage under the additional personal injury protection provisions of the subject policy since, at trial, it made no reference to the governing insurance regulations, nor did it request that the Supreme Court take judicial notice thereof (see CPLR 4511 [b]; cf. Matter of Damian M., 41 AD3d 600 [2007]; Matter of Olympia Victoria R., 261 AD2d 191 [1999]). The defendant’s contention on appeal that the plaintiff was ineligible for excess no-fault coverage does not raise a pure question of law that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]; cf. Block v Magee, 146 AD2d 730, 732-733 [1989]). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $22,000 in unpaid excess no-fault benefits.

Although the defendant also failed to raise before the Supreme Court its contention that the court erred in applying compound interest accruing at 2% per month to the unpaid no-fault benefits (see CPLR 4017; cf. Corsi v Town of Bedford, 58 AD3d 225, 228 [2008]), we review this issue on appeal because it presents a pure question of law that could not have been avoided if brought to the Supreme Court’s attention at the proper juncture (see Mount Sinai Hosp. v Country Wide Ins. Co., 81 AD3d 700, 701 [2011]; Block v Magee, 146 AD2d at 732-733). The Supreme Court erred in awarding compound interest, since the pertinent New York insurance regulations provide for the accrual of simple interest on improperly withheld no-fault benefits at a rate of 2% per month (see 11 NYCRR 65-3.9 [a]; Insurance Law § 5106 [a]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]).

Accordingly, we remit this matter to the Supreme Court, Putnam County, for the recalculation of the interest accrued on the award of the principal sum of $72,000 in unpaid no-fault benefits, by applying simple interest at the rate of 2% per month, from January 15, 2005, through July 15, 2010, and the entry of an appropriate amended judgment thereafter. Mastro, J.P., Rivera, Skelos and Dillon, JJ., concur.

[*1] (February 25, 2015)

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiff validly disclaimed coverage to its insured, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated December 14, 2012, as denied those branches of its motion which were for a temporary restraining order and a preliminary injunction.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff sought to temporarily restrain and preliminarily enjoin all no-fault actions arising from a car accident in which its insured allegedly was a driver. The plaintiff failed to establish a likelihood of success on the merits of its cause of action (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 [2008]; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590 [2005]; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350 [1998]), failed to demonstrate that it would suffer any imminent and nonspeculative harm in the absence of the requested injunctive relief (see County of Suffolk v Givens, 106 AD3d 943 [2013]; Golden v Steam Heat, 216 AD2d 440, 442 [1995]), and failed to demonstrate that any injuries it would suffer would not be compensable by money damages (see Rowland v Dushin, 82 AD3d 738 [2011]; EdCia Corp. v McCormack, 44 AD3d 991, 994 [2007]; Matter of Gandolfo v White, 224 AD2d 526, 528 [1996]). The plaintiff also failed to establish that the equities balance in its favor (see McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165, 174 [1986]). Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which sought a temporary restraining order and a preliminary injunction. Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.

[*1]

Buckley Law Group, P.A., New York (Erdal Turnacioglu of counsel), for appellant.

Boeggeman George & Corde, P.C., White Plains (Richard G. Corde of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 12, 2013, which denied plaintiff’s motion for summary judgment on its claim for defense costs expended in the underlying personal injury action, and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The underlying personal injury action was discontinued by stipulation, to which plaintiff’s insured was a signatory, agreeing that all cross claims between the defendants in that action were “discontinued and waived.” The stipulation contained no reservation of any insurer’s subrogation rights (see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 381-382 [1984]; Ziegler v Raskin, 100 AD2d 814 [1st Dept 1984], appeal dismissed 65 NY2d 925 [1985]). Thus, plaintiff, as subrogee of its insured, standing in its insured’s shoes and having no greater rights than its insured has, may not assert a subrogation claim against defendant (see Progressive Ins. Co. v Sheri Torah, Inc., 44 AD3d 837, 838 [2d Dept 2007]).

Plaintiff’s claim is also time-barred, because plaintiff is seeking common-law subrogation relief, and the statute of limitations on the underlying personal injury cause of action (three years) commenced to run as of the date of the accident (see General Construction Law § 20; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 43 [1995]; CPLR 214 [5]; cf. Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996] [subrogation rights created by no-fault statute commenced on date benefits were paid]).

Although defendant informed plaintiff six months before the limitations period expired that the lessee had failed to name plaintiff’s insured as an additional insured on his personal automobile insurance policy and that plaintiff’s insured was afforded coverage under the policy as a loss payee only, plaintiff did not assert a breach of contract claim against the lessee, or bring a declaratory judgment action against defendant or a subrogation action until well after the time to do so had expired (see Allstate Ins. Co. v Stein, 1 NY3d 416, 423 [2004]).

Thus, even if plaintiff were, as it contends, an additional insured solely by operation of [*2]the terms of the policy issued by defendant, and without reference to the terms of the lease, it could not assert a subrogation claim because its time to do so has expired. Concur—Friedman, J.P., Sweeny, Andrias, Moskowitz and DeGrasse, JJ.