Decided on April 29, 2022

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

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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action and denied plaintiff’s cross motion for summary judgment.

ORDERED that so much of the appeal as is from the denial of plaintiff’s cross motion is dismissed as no appeal lies from an order entered upon the consent of the appealing party (see CPLR 5511); and it is further,

ORDERED that the order, insofar as appealed from and reviewed, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that the action was premature due to plaintiff’s failure to provide requested verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 2, 2019, insofar as appealed from by plaintiff, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action, and, on consent, accepted plaintiff’s untimely cross motion as opposition only, thereby implicitly denying it.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and that it had timely denied plaintiff’s claims on that ground (see 11 NYCRR 65-3.5 [o]). However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise an issue of fact as to whether the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from and reviewed, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action are denied.

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

Hollander Legal Group , P.C. (Allan S. Hollander and Brian Kaufman of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jason Moroff 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 June 7, 2021. 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, 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 June 7, 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 form, as well as plaintiff’s failure to appear for the EUOs. The Civil 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 [*2]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 appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).

Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that the grounds for defendant’s EUO requests were not based on objective reasons. 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]; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 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 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.

DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur.

Gary Tsirelman, P.C. (Gary Tsirelman of counsel), for appellant. Barry, McTiernan & Moore, for respondent (no brief filed).

Appeal, on the ground of inadequacy, from a judgment of the District Court of Nassau County, Third District (Robert E. Pipia, J.), entered September 13, 2019. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $1,972.80 following an inquest, awarded plaintiff statutory no-fault interest accruing from the date the notice of trial was filed.

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action in 2003 to recover $1,972.80 in assigned first-party no-fault benefits, alleging that a claim “was submitted to the defendant on or about 7/18/00.” In 2019, following an arbitration hearing, at which defendant failed to appear, plaintiff was awarded the principal sum of $638.82, plus statutory no-fault interest accruing from the date the notice of trial was filed in 2015. Thereafter, plaintiff demanded a trial de novo, at which defendant failed to appear. An inquest was subsequently held, at which defendant failed to appear, and plaintiff was awarded the principal sum of $1,972.80, plus interest accruing from the date the notice of trial was filed. On appeal, plaintiff contends that since defendant failed to deny its claim, the District Court should have awarded interest accruing from 30 days after the date the claim was submitted to defendant, and that the District Court improperly tolled the accrual of interest until the date the notice of trial was filed.

In Hempstead Gen. Hosp. v Insurance Co. of N. Am. (208 AD2d 501, 501 [1994]), the Appellate Division, Second Department, held that where a claim is not paid within 30 days, and is never actually denied, the claim is overdue within the meaning of Insurance Law § 5106 (a) and interest on the claim will commence “30 days after the claim was presented to the defendant for payment until the date the claim was or is paid” (see Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc 3d 8, 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

While plaintiff argues on appeal that the claim had not been timely denied, this assertion was made solely by plaintiff’s attorney at the inquest and contradicts what is stated in the written arbitrator’s award. Here, plaintiff failed to establish that interest should have started to accrue any earlier than the commencement of the action (see 11 NYCRR 65-3.9 [c]). In addition, a review of the record indicates that the District Court properly tolled the accrual of interest until the date of the notice of trial based upon its implicit finding that plaintiff unreasonably delayed the proceedings (see 11 NYCRR 65-3.9 [d]). Consequently, the District Court properly declined to award interest from the date of the submission of the claim.

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

GARGUILO, P.J., DRISCOLL and VOUTSINAS, 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 (Philip Hom, J.), entered March 16, 2018. The order denied, without prejudice to renewal upon proper papers, plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered February 24, 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 February 24, 2017 is granted.

In this action by a provider to recover assigned first-party no-fault benefits for claims submitted to defendant in 2001, a judgment was entered pursuant to a settlement. The judgment, entered on February 24, 2017, awarded statutory no-fault interest at a simple rate, pursuant to the no-fault regulations in effect in 2017 (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have that interest recalculated 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]). By order entered March 16, 2018, the Civil Court denied plaintiff’s motion without prejudice to renewal upon proper papers. The court found that it could not consider the motion because plaintiff had not included a copy of the stipulation of settlement in its motion papers.

We find that the Civil Court should not have denied the motion, without prejudice to renewal, on the ground that a copy of the stipulation of settlement had not been included among the motion papers, as defendant did not dispute that the action had settled or raise any issues as to the terms of the settlement agreement, and, under the circumstances presented, a copy of the stipulation of settlement was not necessary to demonstrate plaintiff’s entitlement to interest at a compound rate (see 11 NYCRR 65-3.9 [b]). The claim involved herein is governed by the former regulations providing for compound interest (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not demonstrate that plaintiff prevented it from paying the settlement amount, the motion should have been granted (see Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[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]).

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 February 24, 2017 is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 22, 2022

Law Office of Damin J. Toell, P.C., Damin J. Toell of counsel, for appellant. Law Offices of Buratti, Rothenberg & Burns, Kenneth F. Popper of counsel, for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), entered April 5, 2021. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment as moot.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion and the merits of plaintiff’s cross motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order dismissing the complaint on the ground of forum non conveniens (see CPLR 327), arguing that the action should have been commenced in Pennsylvania, where the assignor resides and the insurance policy was issued, or New Jersey, where the accident had allegedly occurred. In the alternative, defendant argued that the complaint should be dismissed as the statute of limitations had expired under the laws of both Pennsylvania and New Jersey, either of which should be applied in this case. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered April 5, 2021, the Civil Court granted the branch of [*2]defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without prejudice to plaintiff commencing a new action in New Jersey. The court did not consider the remaining branch of defendant’s motion and denied plaintiff’s cross motion for summary judgment as moot.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennet, 78 AD3d 936 [2010]).

In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate that the underlying accident had occurred in New Jersey and, thus, that the action should be dismissed based upon forum non conveniens. The police report, offered for the truth of the matter asserted therein, constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]; Monroe v Foremost Signature Ins. Co., 66 Misc 3d 128[A], 2019 NY Slip Op 52042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Longevity Med. Supply, Inc. v 21st Century Ins. Co., 66 Misc 3d 128[A], 2019 NY Slip Op 52041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, defendant could not rely on the copy of the NF-2 no-fault application, which stated where the accident occurred, because it was first submitted in defendant’s reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc 3d 145[A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant failed to submit sufficient evidence to support a dismissal based on forum non conveniens (see CPLR 327 [a]). The evidence showed that plaintiff is a New York corporation and that defendant has offices in New York, and defendant failed to point to any hardship for possible witnesses or any burden on the New York courts (see Kefalas v Kontogiannis, 44 AD3d 624 [2007]). Upon the record presented, we find that the Civil Court erred in granting the branch of defendant’s motion seeking dismissal based on forum non conveniens.

Accordingly, the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion and the merits of plaintiff’s cross motion.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 22, 2022

Respondent appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated October 4, 2021, which granted the petition of Allstate Fire & Casualty Insurance Company to vacate a master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated October 4, 2021, affirmed, with $10 costs.

Civil Court properly vacated the master arbitrator’s award and denied respondent’s cross motion to confirm the award. When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co v Sawh, 272 AD2d 245 [2000][internal quotation marks omitted]). An arbitrator’s award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [2020]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]).

At the framed issue hearing on the issue of policy exhaustion, petitioner’s submissions were sufficient to establish that the policy had been exhausted on May 8, 2019 by payments of no-fault benefits to other health care providers and lost wages to the assignor before petitioner was obligated to pay the claim at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U][App Term, 1st Dept 2016]). The evidence includes the testimony of petitioner’s claims adjustor, coupled with the policy declaration page showing a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 limit for Optional Basic Economic Loss coverage, a payment ledger listing in chronological order the dates the claims by various providers were received and paid, and a [*2]ledger showing the dates and amounts of lost earnings reimbursed to the assignor. In response, respondent called no witnesses nor offered any evidence at the hearing.

Contrary to respondent’s contention, petitioner was not precluded by 11 NYCRR 65-3.15 from paying other legitimate claims subsequent to the denial of respondent’s claims (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U][App Term, 1st Dept 2015]). Adopting respondent’s position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent’s disputed claims “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). Respondent’s contention that the other claims paid by petitioner were not shown to be “verified” is unpreserved as a matter of law for this court’s review, no such argument having been raised at Civil Court (see Matter of Allcity Ins. Co. [Rodriguez], 212 AD2d 405 [1995]). The alleged defect in petitioner’s proof could have been raised at the framed issue hearing. An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance (see Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 349 [1955]; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307 [1991], lv denied 78 NY2d 856 [1991]).

Having admitted in its papers that the assignor was a pedestrian, respondent may not now claim that additional personal injury protection (APIP) benefits are payable because “there was no evidence … that assignor was a pedestrian.”

We have considered respondent’s remaining arguments and find them unavailing.

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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.), entered March 26, 2020. The order granted defendant’s motion to, in effect, vacate a judgment of that court entered March 23, 2017 and, upon such vacatur, to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the judgment and dismiss the complaint is denied.

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 the interest as compound instead of simple. Defendant submitted opposition to the motion and the motion was marked fully submitted on October 21, 2019. It remains pending.

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 [*2]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.” In the alternative, defendant’s motion sought to “vacat[e] the judgment . . . upon the ground that plaintiff failed to comply with CPLR 5003-a.” Plaintiff opposed the motion, to which defendant replied.

By order entered March 26, 2020, the Civil Court granted defendant’s motion and vacated the judgment on the ground of (1) fraud (see CPLR 5015 [a] [3]) based on plaintiff’s failure to inform the court clerk that it had been dissolved in 2001 and (2) lack of jurisdiction (see CPLR 5015 [a] [4]) based on plaintiff’s failure to comply with CPLR 5003-a. Upon such vacatur, the court dismissed the complaint pursuant to CPLR 1017 and 1021 due to the failure to have a proper party substituted for plaintiff within a reasonable time after plaintiff was dissolved.

On appeal, plaintiff contends, among other things, that the Civil Court improperly vacated the judgment.

Under the circumstances presented, we find that plaintiff had the capacity to seek entry of judgment and maintain this action as part of the winding up of its business affairs pursuant to Business Corporation Law §§ 1005 and 1006. While CPLR 1017 provides that a court shall order substitution of the proper party where a corporate party is dissolved, to the extent that Business Corporation Law §§ 1005 and 1006 can be deemed to be inconsistent with CPLR 1017 and 1021, the Business Corporation Law provisions govern (see CPLR 101). Business Corporation Law § 1006 provides, in pertinent part, that “(a) A dissolved corporation, its directors, officers and shareholders may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place, except as otherwise provided in this chapter or by court order.” Business Corporation Law § 1005 (a) (2) defines “winding up” as the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets (see Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340 [1989]). Since Business Corporation Law § 1006 does not include any time limit for winding up the dissolved corporation’s affairs, courts will imply a reasonable period of time (see e.g. Spiegelberg v Gomez, 44 NY2d 920, 921 [1978]).

As the party moving to vacate the judgment and dismiss the complaint on the ground that plaintiff lacked the capacity to enter judgment and to maintain this action, defendant had the burden of proving that plaintiff is no longer winding up its affairs (see e.g. Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d 818 [2017]; Singer v Riskin, 137 AD3d 999, 1000 [2016]; Brooklyn Elec. Supply Co., Inc. v Jasne & Florio, LLP, 84 AD3d 997 [2011]; Brach v Levine, 36 Misc 3d 1213[A], 2012 NY Slip Op 51312[U] [Sup Ct, Kings County 2012]). Defendant’s initial moving papers, which include the conclusory statement that plaintiff failed to show that it was “in the process of winding up its affairs,” were insufficient to establish, prima facie, that plaintiff’s actions did not relate to the winding up of its affairs or that the nearly 14-year time period between the July 2003 settlement and when plaintiff sought to enter judgment in March of 2017 was an unreasonable period of time to wind up its affairs. Thus, the branch of defendant’s motion seeking to vacate the judgment and, upon such vacatur, to dismiss the [*3]complaint on the ground that plaintiff was a dissolved corporation which was not winding up its affairs should have been denied (see Lamarche Food Prods. Corp. v 438 Union, LLC, 178 AD3d 910 [2019]; Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d at 821; Lance Intl., Inc. v First Nat’l City Bank, 86 AD3d 479 [2011]; Moran Enters., Inc. v Hurst, 66 AD3d 972 [2009]).

While defendant contends that the judgment against it was improperly entered because plaintiff had not provided defendant with a duly executed release and stipulation of discontinuance (see CPLR 5003-a [a]), defendant failed to submit an affidavit from someone with knowledge establishing that failure. We note that the Civil Court’s basis for vacating the judgment pursuant to CPLR 5015 (a) (4) was improper. The court had jurisdiction to enter the judgment herein (see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200 [2013]).

Accordingly, the order is reversed, defendant’s motion is denied and the matter is remitted to the Civil Court to determine plaintiff’s pending motion.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. 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 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).

Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), thereby demonstrating that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. McCormack & Mattei, P.C. (Andre S. Haynes of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.; op 53 Misc 3d 216 [2016]), entered June 30, 2016. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $2,226.41, following a calculation of statutory no-fault interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment which dismissed the complaint after a nonjury trial that was limited, pursuant to a stipulation, to the sole issue of whether plaintiff had appeared for examinations under oath (EUOs).

Transcripts recording defendant’s attorney’s statements that, as of a certain time, the provider, plaintiff herein, had not appeared for EUOs scheduled to be held at that place and time—”bust” statements—were admitted into evidence, over plaintiff’s objection, as business records (see CPLR 4518 [a]) to prove the nonappearances. Following the trial, the Civil Court determined that defendant proved by a preponderance of the evidence that plaintiff failed to appear at least two times for a scheduled EUO, and entered a judgment dismissing the action (Charles Deng Acupuncture, P.C. v Titan Ins. Co., 53 Misc 3d 216 [2016]). Plaintiff appeals, arguing that the court erred in admitting the transcripts, and that, without the transcripts, defendant did not establish that plaintiff had failed to appear at the EUOs.

Contrary to the determination of the Civil Court, the transcripts of the “bust” statements should not have been admitted into evidence. They were hearsay—out-of-court statements being used to prove the truth of the matter asserted—and therefore generally would only be admissible if a hearsay exception applies. While defendant contended, and the court agreed, that the transcripts were admissible as business records pursuant to CPLR 4518 (a), we disagree and hold that these transcripts were not admissible at this trial as business records to prove that plaintiff had not appeared for examinations under oath.

Under CPLR 4518 (a), a business record—a “writing or record” that is “made as a memorandum or record of any act, transaction, occurrence or event”—will be admissible as proof of the acts, transactions, occurrences or events recorded, if the court finds that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” A transcript is a record of words that were uttered; while those words may describe an event, transcripts are generally not made as a memorandum or record of the event described. Here, defendant did not show a sufficient basis to admit counsel’s hearsay statements or that these transcripts should otherwise be treated as admissible pursuant to CPLR 4518 (a). Indeed, even if the transcripts could be treated as a “memorandum or record” of a nonappearance, rather than of a statement, there is no basis on this record to find that the record “was made in the regular course of any business” or “that it was the regular course of such business to make” a transcript as such a “memorandum or record” of a nonappearance (CPLR 4518 [a]).

We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.

As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the sum of $2,226.41, following a calculation of statutory no-fault interest and an assessment of attorney’s fees.

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