Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 31, 2019. The order, insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

For the reasons stated in Island Life Chiropractic Pain Care, PLLC, as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2020-251 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.

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

Decided on August 19, 2022

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered November 4, 2019. The order insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

Defendants based their motion on CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant American Independent Ins. Co.’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant American Independent Ins. Co. argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over it (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an “affirmation” by its counsel, who made unsupported assertions that, among other things, defendant American Independent Ins. Co. had transacted business in New York by knowingly issuing policies to New York drivers, and that American Independent Ins. Co. had established an ongoing relationship with defense counsel in New York, thereby subjecting American Independent Ins. Co. to jurisdiction in New York. For the reasons stated in Excel Prods., Inc. v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the branch of the motion by defendant American Independent Ins. Co. seeking to dismiss the complaint insofar as asserted against it should have been granted. In addition, because the “affirmation” submitted by plaintiff’s counsel is unsigned, the affirmation is of no probative value (see WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50146[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]) and plaintiff failed to satisfy its burden of making a prima facie showing that there was personal jurisdiction over American Independent Ins. Co. (see Hopstein v Cohen, 143 AD3d 859 [2016]).

Similarly, after defendant American Independent Insurance Companies, Inc. contested jurisdiction, “plaintiff need[ed] only make a prima facie showing that such jurisdiction exists” (Hopstein, 143 AD3d at 860 [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the instant case, the only proof that service of process was made upon American Independent Insurance Companies, Inc. consisted of affidavits of service stating that service was made upon defendant Good2Go Auto Insurance. Consequently, the branch of the motion by defendant American Independent Insurance Companies, Inc. seeking to dismiss the complaint insofar as asserted against it should have been granted.

To the extent defendant Good2Go Auto Insurance moved to dismiss the complaint insofar as asserted against it, plaintiff’s opposition papers contained copies of affidavits of service reflecting that service was made upon Good2Go Auto Insurance. In its reply papers, Good2Go Auto Insurance made no attempt to demonstrate that the person served was not “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” (CPLR 311 [1]). As a result, Good2Go Auto Insurance failed to demonstrate a basis to disturb so much of the order as denied the branch of the motion by defendant Good2Go Auto Insurance seeking to dismiss the complaint insofar as asserted against it.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against [*3]American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, 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 (Patria Frias-Colón, J.), dated April 15, 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 the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are 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 failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant’s mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged.

Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (see 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]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, 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]).

With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant’s June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

Hollander Legal Group, P.C. (Damin J. Toell of counsel), for appellant. The Rybak Firm, PLLC (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered August 22, 2019. 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 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider’s assignor had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assignor had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & [*2]Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Upon a review of the record, we find, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, that defendant sufficiently established that the EUO scheduling letters 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]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order is affirmed.

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

Decided on August 12, 2022

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

Decided on August 12, 2022

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 12, 2022

APPEARANCES OF COUNSEL

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

Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel) for respondent.

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

In this action by a provider to recover assigned first-party no-fault benefits from the alleged insurer of its assignor, defendant failed to appear or answer the complaint, and a default judgment was entered on July 26, 2018. On September 6, 2018, defendant served an answer and, in November 2018, it moved to vacate the default judgment. Plaintiff appeals from an order of the Civil Court entered October 21, 2019, granting defendant’s motion, finding that defendant had demonstrated a reasonable excuse for its default and a meritorious defense.

In its moving papers, defendant explained that its default had been due to its own failure to forward the complaint to its attorneys. However, it asserted that it had not ignored the matter, but rather had informed plaintiff several months prior to the commencement of the action that it was not the insurance carrier for plaintiff’s assignor—an assertion which plaintiff has never contradicted. Upon receiving notice of the default judgment, defendant requested that the action [*2]be “withdrawn.” Defendant thereafter referred the matter to its counsel, which promptly served an answer and then moved to vacate the default judgment.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable{**76 Misc 3d at 16} excuse for a default generally lies within the sound discretion of the motion court (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 886 [2019]). Here, in light of the absence of an evident pattern of neglect and counsel’s prompt actions, upon entering the case, in seeking to vacate the default (see Barajas v Toll Bros., 247 AD2d 242, 242-243 [1998]), the meritorious defense of lack of coverage, which plaintiff has never disputed, plaintiff’s failure to claim any prejudice by reason of the brief delay involved (see New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 555 [2005]; see also Matter of A&F Scaccia Realty Corp. v New York City Dept. of Envtl. Protection, 200 AD3d 875, 878 [2021]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]), and the public policy favoring the resolution of cases on the merits (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 833 [2009]; Legion Ins. Co. v James, 27 Misc 3d 128[A], 2010 NY Slip Op 50593[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), we conclude that the Civil Court providently exercised its discretion in granting defendant’s motion.

Accordingly, the order is affirmed.

Weston, J. (dissenting and voting to reverse the order and deny defendant’s motion to vacate the default judgment in the following memorandum).

When defendant was served with a summons and complaint on May 29, 2018, it elected not to forward the matter to its attorney to serve and file an answer because it believed that plaintiff’s claim is meritless. Defendant did not answer until September 6, 2018, approximately six weeks after a default judgment had been entered on July 26, 2018, and more than three months after service. A party may not choose when to answer and, given the lengthy delay in answering, it is clear that defendant’s default was intentional and, therefore, inexcusable (see Fok v Insurance Co. of N. Am., 151 AD2d 722, 722 [1989]). Since defendant failed to establish a reasonable excuse for its default in answering the complaint, defendant’s motion should have been denied without the need to consider whether defendant demonstrated the existence of a potentially meritorious defense (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887 [2019]; New Century Mtge. Corp. v Adeyan-Ju, 139 AD3d 683, 684 [2016]).

Accordingly, I vote to reverse the order and deny defendant’s motion to vacate the default judgment.{**76 Misc 3d at 17}

Aliotta, P.J., and Buggs, J., concur; Weston, J., dissents in a separate memorandum.

Marshall & Marshall, PLLC (David A. Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered July 19, 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 reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) (sued herein as MVAIC Insurance Company) appeals from an order of the District Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

It is undisputed that plaintiff was required to submit its claim forms to MVAIC within 45 days after the services at issue had been rendered (see 11 NYCRR 65-1.1; Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]) and that plaintiff did not do so. In support of its motion for summary judgment, MVAIC established that it had timely denied plaintiff’s claims, based upon plaintiff’s untimely submissions, and that it had informed plaintiff that MVAIC could excuse the delay if plaintiff provided “reasonable justification” for the delay (see 11 NYCRR 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). In opposition to MVAIC’s motion, plaintiff demonstrated that it had initially sent the claims at issue to an insurance company, but after plaintiff learned that the insurance company would not cover the claims, plaintiff sent the claims to MVAIC. However, plaintiff did not establish that it had provided MVAIC with a reasonable justification as to why it had initially submitted the claims to the insurance company. As a result, plaintiff did not establish that it had provided MVAIC with a reasonable justification for its untimely submission to MVAIC of the claim forms (see Norman Y. Schoenberg, M.D., P.C. v N.Y.C. Tr. Auth., 39 Misc 3d 128[A], 2013 NY Slip Op 50421[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 11, 2022

Decided on August 5, 2022

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