Decided on February 24, 2023

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

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

Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 15, 2019. The order granted defendant’s motion to vacate a judgment entered January 26, 2019 pursuant to a default under a stipulation of settlement.

ORDERED that the order is reversed, with $30 costs, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement which provided that defendant would pay plaintiff the total sum of $2,523.02. Plaintiff accepted from defendant three checks dated 45 days after the stipulation of settlement. Thereafter, plaintiff applied for a default judgment, alleging that defendant had failed to timely make the payment. Plaintiff provided a signed copy of the purported stipulation of settlement which set forth that defendant was to make the payment within 21 days. A judgment was entered against defendant. Defendant moved to vacate the judgment, asserting that its payment was timely. Defendant provided a signed copy of the purported stipulation of settlement which contained a handwritten notation setting forth that [*2]defendant was to make the payment within 45 days. After oral argument, but without holding a hearing, the Civil Court granted defendant’s motion.

In light of the apparent factual dispute regarding the terms of the stipulation of settlement and defendant’s compliance with them, it was error for the Civil Court to grant defendant’s motion without holding a hearing to determine the disputed issues of fact (see Midland Funding, LLC v Dort, 39 Misc 3d 151[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also U.S. Equities Corp. v Ridwan, 71 Misc 3d 138[A], 2021 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

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

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant.

Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), dated March 27, 2020. The order denied, as moot, plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 23, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 23, 2017 is granted.

Plaintiff commenced this action in 2000 to recover first-party no-fault benefits for supplies it furnished to its assignor as a result of a motor vehicle accident that occurred on June 11, 1998. Defendant appeared and answered. On June 27, 2001, the State of New York dissolved plaintiff by proclamation. On or about July 15, 2003, the parties entered into a settlement agreement. It is uncontroverted that defendant did not pay the amount set forth in the settlement. On March 23, 2017, plaintiff had a judgment entered, ex parte, in the total sum of $4,781.27, including $2,972.06 in interest. In December of 2018, plaintiff moved to recalculate, from a simple rate to a compound rate, the award of statutory no-fault interest in the March 23, [*2]2017 judgment pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Defendant opposed the motion and the motion was marked fully submitted on October 21, 2019.

In November of 2019, defendant moved to, in effect, vacate the March 23, 2017 judgment and, upon such vacatur, to “dismiss[ ] the complaint on the ground that plaintiff lacks standing to maintain this action and collect on the judgment . . . since the Secretary of State dissolved plaintiff and annulled its authority on June 27, 2001, and plaintiff has failed to wind up its affairs within a reasonable time as a matter of law” or, in the alternative, “upon the ground that plaintiff failed to comply with CPLR 5003-a.” By order entered March 26, 2020, the Civil Court granted defendant’s motion, vacated the judgment and, upon such vacatur, dismissed the complaint.

On appeal, this court, by order dated April 1, 2022, reversed the March 26, 2020 order, denied defendant’s motion to vacate the judgment and stated that the matter was being remitted to the Civil Court to determine plaintiff’s pending December 2018 motion (Medtech Med. Supply, Inc. v Country-Wide Ins. Co., 74 Misc 3d 137[A], 2022 NY Slip Op 50304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). At that time, this court was unaware of the fact that the Civil Court, by order dated March 27, 2020, had denied, as moot, plaintiff’s pending motion to recalculate the interest awarded in the March 23, 2017 judgment. Plaintiff now appeals from the March 27, 2020 order.

As this court has reversed the March 26, 2020 order granting defendant’s motion to vacate the March 23, 2017 judgment, and that judgment has been reinstated, plaintiff’s motion is no longer moot.

Rather than remitting the matter to the Civil Court for a determination of the merits of plaintiff’s motion to recalculate the interest awarded in the March 23, 2017 judgment, in the interest of judicial economy, we address the merits and find that the claim is governed by the former regulations providing for compound interest (see Biotech Surgical Supply v Country Wide Ins. Co., 75 Misc 3d 128[A], 2022 NY Slip Op 50376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; G.N.S. Med. Supplies, Inc. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52035[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]) and that defendant’s argument that plaintiff’s motion should be denied because of a delay in entering the judgment after the settlement is without merit (see Biotech Surgical Supply, 2022 NY Slip Op 50376[U]; Seaside Rehabilitation, 2019 NY Slip Op 50918[U]).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, the award of statutory no-fault interest in the judgment entered March 23, 2017 is granted.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated September 2, 2020. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing causes of action (1), (2), (3), (4) and (6), and denied the branches of plaintiff’s cross motion seeking summary judgment on those five causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In October of 2017, plaintiff Ahmed Medical Care, P.C. (Ahmed) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover $892.14 in assigned first-party no-fault benefits for services Ahmed rendered to its assignor, Sigmund October, for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. The services were rendered on six dates between June 23, 2015 and November 18, 2015.

State Farm moved for summary judgment dismissing causes of action (1), (2), (3), (4) and (6) on the ground that they were barred by the doctrine of res judicata and/or collateral estoppel by virtue of a declaratory judgment issued by the Supreme Court, Nassau County, in a [*2]declaratory judgment action commenced by State Farm against Ahmed. In a support of the motion, State Farm’s counsel stated that, following Ahmed’s default in appearing in the Supreme Court action, a judgment was entered on April 1, 2016 (Antonio I. Brandveen, J.) which declared that Ahmed had no right to receive payment from State Farm for any claims set forth in the chart attached to the Supreme Court complaint because the assignor had failed to appear for examinations under oath. State Farm attached to its Civil Court motion a copy of the chart containing the precluded claims. State Farm’s counsel further stated that Ahmed’s motion to vacate its default in appearing in the Supreme Court action was denied in an order entered September 2, 2016. Ahmed cross-moved in the Civil Court for summary judgment on all six causes of action. Ahmed’s counsel argued, as is relevant here, that the declaratory judgment action has no preclusive effect on this action since it was granted on default.

In an order dated September 2, 2020, the Civil Court granted State Farm’s motion for summary judgment dismissing causes of action (1), (2), (3), (4) and (6), and granted Ahmed’s cross motion for summary judgment only with respect to the fifth cause of action. Ahmed appeals.

Initially, Ahmed’s contention that the copy of the chart of the claims barred by the declaratory judgment attached to State Farm’s motion was illegible and should not have been considered is without merit (see Bronx Med. Diagnostic, P.C. v Hereford Ins. Co., 65 Misc 3d 146[A], 2019 NY Slip Op 51793[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). ” ‘A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised . . . in the prior action’ ” (Tracey v Deutsche Bank Natl. Trust, 187 AD3d 815, 817 [2020], quoting Eaddy v US Bank N.A.,180 AD3d 756, 758 [2020]; see North Val. Med., P.C. v Permanent Gen. Assur. Corp., 74 Misc 3d 127[A], 2022 NY Slip Op 50048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

As defendant’s moving papers sufficiently established that the assignor, claims, date of loss and dates of service relevant to causes of action (1), (2), (3), (4) and (6) in the case at bar are the same as those referenced in the Supreme Court declaratory judgment which rendered a final adjudication of those claims on the merits (see Ciraldo, 140 AD3d at 913), causes of action (1), (2), (3), (4) and (6) in the instant Civil Court action were barred under the doctrine of res judicata. Consequently, the Civil Court properly granted State Farm’s motion for summary judgment dismissing those causes of action (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud [*3]Dists 2012]), since any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated September 2, 2020. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and denied the branches of plaintiff’s cross motion seeking summary judgment on those four causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In October of 2017, plaintiff Ahmed Medical Care, P.C. (Ahmed) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover $892.14 in assigned first-party no-fault benefits for services Ahmed rendered to its assignor, Celeste October, for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. The services were rendered on six dates between June 23, 2015 and November 18, 2015.

State Farm moved for summary judgment dismissing causes of action (1), (2), (4) and (6) on the ground that they were barred by the doctrine of res judicata and/or collateral estoppel by virtue of the declaratory judgment issued by the Supreme Court, Nassau County, in a declaratory judgment action commenced by State Farm against Ahmed. In support of the motion, State [*2]Farm’s counsel stated that, following Ahmed’s default in appearing in the Supreme Court action, a judgment was entered on April 1, 2016 (Antonio I. Brandveen, J.) which declared that Ahmed had no right to receive payment from State Farm for any claims set forth in the chart attached to the Supreme Court complaint because the assignor had failed to appear for examinations under oath. State Farm attached to its Civil Court motion a copy of the chart containing the precluded claims. State Farm’s counsel further stated that Ahmed’s motion to vacate its default in appearing in the Supreme Court action was denied in an order entered September 2, 2016. Ahmed cross-moved in the Civil Court for summary judgment on all six causes of action. Ahmed’s counsel argued, as is relevant here, that the declaratory judgment action has no preclusive effect on this action since it was granted on default.

In an order dated September 2, 2020, the Civil Court granted State Farm’s motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and granted Ahmed’s cross motion for summary judgment only with respect to causes of action (3) and (5). Ahmed appeals.

For the reasons stated in Ahmed Med. Care, P.C., as assignee of October, Sigmund v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2023 NY Slip Op — [appeal No. 2021-659 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on January 6, 2023

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Office of Gabriel & Moroff, LLC (Matthew Sledzinski and Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 12, 2021. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order dated July 12, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The District Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to [*2]appear, and that the insurer issued timely denials of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the District Court found to have been established (see CPLR 3212 [g]).

Plaintiff does not argue that defendant did not demonstrate its prima facie entitlement to summary judgment. Rather, plaintiff argues that defendant did not have an objective basis for requesting the EUOs. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant’s motion should have been granted.

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

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is [*2]not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint should have been denied.

However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

Hollander Legal Group, P.C. (Allan S. Hollander 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 (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Defendant’s motion failed to establish that it had timely denied plaintiff’s claims after plaintiff’s second failure to appear for an EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. [*2]v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

As to plaintiff’s cross motion, defendant does not challenge plaintiff’s prima facie case and so we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Moreover, defendant’s papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense so as to warrant denial of plaintiff’s cross motion.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Jannine A. Gordineer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), dated October 15, 2020. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

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 had fraudulently procured the insurance policy in question by making material misrepresentations as to the vehicle in question and on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule, a defense that is not subject to preclusion as to the claims at issue (see 11 NYCRR 65-3.8 [g]). Plaintiff cross-moved [*2]for summary judgment. The Civil Court granted the branch of defendant’s motion based on fraudulent procurement and denied plaintiff’s cross motion. The court did not pass on the branch of defendant’s motion that was based upon the alternate fee schedule ground.

The defense that an insured made a material misrepresentation when obtaining the insurance policy is subject to preclusion (see Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, as plaintiff argues, defendant is not entitled to summary judgment on this ground as to the first cause of action, as defendant failed to offer proof that it ever denied the claim underlying that cause of action (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]), and so did not demonstrate that it is not precluded from raising this defense as to that claim.

Defendant did establish that it is not precluded from raising its material misrepresentation defense as to the claim underlying the second cause of action, as it demonstrated that it timely denied that claim on that ground (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]). However, a misrepresentation is only material “if the insurer would not have issued the policy had it known the facts misrepresented” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011]). Here, the alleged material misrepresentation was the failure to reveal that the vehicle being insured was a “for hire” livery vehicle, which defendant’s underwriting supervisor stated is an excluded operation, claiming that defendant does not issue livery policies in New York State. However, as plaintiff contends, defendant failed to “present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (id. at 994 [internal quotation marks omitted]). “Conclusory statements by insurance company employees, unsupported by documentary evidence, are insufficient to establish materiality as a matter of law” (Schirmer v Penkert, 41 AD3d 688, 690-691 [2007]). Consequently, defendant did not demonstrate as a matter of law that the misrepresentation was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993; Schirmer v Penkert, 41 AD3d 688; cf. Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

Plaintiff’s contention that its cross motion for summary judgment should have been granted lacks merit because, among other things, the proof submitted in support thereof failed to establish either that defendant failed to timely deny the claims at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the [*3]alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.