Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was ineligible to collect first-party no-fault benefits because he was operating a motorcycle at the time of the accident. In support of the motion, defendant submitted the transcript of plaintiff’s assignor’s examination under oath (EUO) in which he interchangeably referred to the motor vehicle he was operating at the time of the accident as a “moped” or “motorcycle.” He testified that the vehicle had a seat and a floorboard, but did not have pedals, and that the maximum speed of the vehicle was more than 40 miles per hour. Plaintiff’s assignor admitted that he did not have a driver’s license and that he had no insurance for the vehicle. Defendant also submitted a copy of the relevant insurance policy issued to the other individual involved in the accident, which policy stated that persons occupying a “[m]otorcycle, moped or similar-type vehicle” are not entitled to first-party benefits coverage. Plaintiff opposed the motion, arguing that the EUO transcript was inadmissible because it was not signed by the assignor and that, in any event, the vehicle that plaintiff’s assignor was driving did not qualify as a motorcycle under the Insurance Law. In an order dated August 15, 2024, the Civil Court (Robert J. Helbock, J.) granted defendant’s motion.

Contrary to plaintiff’s contention, the certified EUO transcript was admissible, even though it was not signed by plaintiff’s assignor (see American States Ins. Co. v Huff, 119 AD3d 478, 479 [2014]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Compas Med., P.C. v ELRAC, Inc., 47 Misc 3d 143[A], 2015 NY Slip Op 50675[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Pursuant to Insurance Law § 5102 (j), a ” ‘[c]overed person’ means any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in subdivision two of section three hundred twenty-one of such law; or any other person entitled to first party benefits.” Insurance Law § 5102 (f) specifically excludes motorcycles from the definition of a motor vehicle (see Insurance Law § 5102 [m]), and, thus, occupants of a motorcycle are not entitled to first-party no-fault benefits in New York (see Insurance Law § 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Jung v Glover, 169 AD3d 782, 784 [2019]; Boyson v Kwasowsky, 129 AD3d 151, 152, 154 [2015]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 228 [2011]; Carbone v Visco, 115 AD2d 948 [1985]).

“A motorcycle is defined in the Insurance Law as ‘any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law’ (Insurance Law § 5102 [m] [emphasis added])” (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228). To the extent that plaintiff argues that the vehicle operated by plaintiff’s assignor did not qualify as a motorcycle required to carry financial security, we disagree. Upon a review of plaintiff’s assignor’s EUO testimony, we find that the vehicle plaintiff’s assignor was operating at the time of the accident was a motorcycle, as defined in Insurance Law § 5102 (m), because the vehicle had a seat, was operated using gas and electricity, and clearly had three or less wheels, given plaintiff’s assignor’s description of the vehicle as a “moped,” or “motorcycle” (see Vehicle and Traffic Law §§ 123, 125). Further, plaintiff’s assignor’s testimony regarding the speed of the vehicle demonstrates that the vehicle was required to carry financial security, as he testified that the vehicle had a maximum speed of more than 40 miles per hour (see Vehicle and Traffic Law §§ 121-b, 125, 311 [2]; 312 [1] [a]; 2265 [3]). Consequently, defendant met its prima facie burden of establishing that plaintiff’s assignor was ineligible to collect no-fault benefits under the insurance policy issued to the other individual involved in the accident (see Insurance Law §§ 5102 [j], [m]; 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228-229), and plaintiff failed to raise a triable issue of fact in opposition.

As defendant established that the accident was not a covered incident (see Insurance Law § 5102 [j]; Jung v Glover, 169 AD3d at 784), we need not pass upon plaintiff’s contention that the claim was not timely denied, as a defense of lack of coverage is not precluded even in the absence of a timely denial (see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. 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 appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. 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 appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jay Koo and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sandra Perez, J.), dated October 29, 2024. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Sandra Perez, J.) entered October 31, 2024 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and that plaintiff had failed to appear for the EUOs. The Civil Court further found that there was a “triable issue of fact surrounding the EUOs,” because “[p]laintiff . . . established that [it] objected to the reasonableness of each . . . request” for an EUO.

In order “to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insured need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [] failure to appear at the last scheduled EUO’ ” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 84 Misc 3d 136[A], 2024 NY Slip Op 51822[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2024], quoting Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). The Civil Court found, in effect, that the first two elements of defendant’s prima facie case had been established pursuant to CPLR 3212 (g). As part of this prima facie showing, an insurer is “not required to set forth objective reasons for requesting EUOs” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 2024 NY Slip Op 51822[U], *1-2; see Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

The affidavits submitted by defendant constitute prima facie evidence that the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff did not submit an affidavit to refute this evidence, nor did it challenge the implicit CPLR 3212 (g) findings in defendant’s favor with respect to the first two elements of defendant’s prima facie case. Plaintiff’s objection letters, in which plaintiff alleged that defendant did not have an objective basis for requesting an EUO, do not raise a triable issue of fact (see MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50423[U], *1-2; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Marshall Dennehey Warner Coleman & Goggin (Aneshia Chintamani of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated June 6, 2024. 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 defendant had not issued an insurance policy covering plaintiff’s assignor and, thus, plaintiff’s assignor was not an eligible injured person entitled to receive no-fault benefits. By order dated June 6, 2024, the Civil Court (Mary A. Kavanagh, J.) granted defendant’s motion.

As plaintiff properly contends on appeal, defendant failed to establish its entitlement to summary judgment dismissing the complaint as the affidavit submitted by a claims adjuster from “USAA General Indemnity Company” was insufficient to establish, prima facie, defendant’s lack of coverage defense. Here, the claims adjuster did not establish that she was employed by defendant or how defendant and her employer were related to each other. Moreover, she failed to establish that she had personal knowledge of defendant’s standard practices and procedures for maintaining or searching for information related to policyholders and current or past policies. Indeed, the claims adjuster failed to set forth that a search of defendant’s records or databases was ever conducted for the instant case. Rather, she merely stated in her affidavit that “USAA General Indemnity Company” did not insure plaintiff’s assignor, his vehicle, nor anyone that resided with plaintiff’s assignor. This statement was insufficient, and, as a result, defendant failed to satisfy its prima facie burden entitling it to summary judgment dismissing the complaint (cf. Delta Diagnostic Radiology, P.C. v Am. Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op [*2]51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

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

BUGGS, J.P., OTTLEY and QUIÑONES, JJ., concur.

Alahverdian Van Leuvan, P.C. (Gerard R. Van Leuvan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lola Waterman, J.), entered May 21, 2024. The order denied the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction.

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 to dismiss the complaint. In support of its motion, defendant argued that the Civil Court did not obtain personal jurisdiction over it because it is an Ohio company which is not authorized to do business in New York, and that it has not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies will be deemed to satisfy the requirements of the New York Vehicle and Traffic Law; that the $5,000 limit of the insurance policy had been exhausted prior to plaintiff’s claims; and that it was not properly served with the summons and complaint. By order entered May 21, 2024, the Civil Court (Lola Waterman, J.) solely addressed, and denied, the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]). The court found that defendant “failed to produce evidentiary proof in admissible form.” Specifically, the affidavit by defendant’s director of claims, which was signed and notarized in Ohio, lacked a certificate of conformity, and the insurance policy’s declaration page was not certified and lacked any foundation. The order concluded by noting that “issues of material fact exist as to whether defendant does not do business in the State of New York,” and that “This case shall proceed on to trial on the issue of personal jurisdiction.” On appeal, defendant contends that the Civil Court should have granted the branch of its motion seeking to dismiss the complaint on the ground of lack of jurisdiction.

In addition to its determination that there were various deficiencies in defendant’s [*2]submissions which required its motion to be denied, the court found that sufficient issues of fact existed “as to whether defendant does not do business in the State of New York” and, therefore, held that the issue of personal jurisdiction would be determined at trial. We find that this determination by the Civil Court was proper under the circumstances of this case.

Defendant’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

Upon a review of the record, we find that the papers defendant submitted in support of the branch of its motion seeking summary judgment dismissing the complaint failed to demonstrate by admissible proof, as a matter of law, that defendant provided the insured with proper notice of cancellation in accordance with Vehicle and Traffic Law § 313 (1) (a) (see Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co., 60 Misc 3d 132[A], 2018 NY Slip Op 51006[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In addition, we note that defendant, in any event, has not demonstrated that the alleged cancellation of the policy was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [2] [a]; [3]; Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Pravel, Inc. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 132[A], [*2]2020 NY Slip Op 50457[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Advanced Med. Care, P.C. v Allstate Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50130[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; GL Acupuncture, P.C. v Geico Ins. Co., 48 Misc 3d 141[A], 2015 NY Slip Op 51239[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint should have been denied.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.