Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 18, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,111.94.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered April 18, 2019 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,111.94. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers’ compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

When reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 493 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

In the present case, the record supports the finding of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. Consequently, we find no basis to disturb the Civil Court’s determination.

Accordingly, the judgment is affirmed.

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

ELLIOT, J., taking no part.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Christopher Stevens of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 13, 2019. The order, insofar as appealed from, denied plaintiff’s motion to vacate the administrative dismissal of the action and, upon such vacatur, for the entry of a default judgment.

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

In or about October 2013, plaintiff commenced this action to recover, among other things, the principal sum of $485.52 in assigned first-party no-fault benefits for injuries its assignor sustained in a motor vehicle accident. In November 2013, a stipulation of discontinuance was entered into whereby the parties agreed that, by December 16, 2013, defendant would pay plaintiff the sum of $588.46, and, if defendant failed to do so, plaintiff, without notice, could seek entry of a default judgment pursuant to CPLR 3215 (i). It is uncontroverted that, as of December 16, 2013, defendant had only paid plaintiff the sum of $538.46. In August 2018, plaintiff filed papers with the court clerk seeking the entry of a default judgment in the total sum of $1,221.96. The filing was rejected because the action had been administratively dismissed. Thereafter, in March 2019, plaintiff moved to vacate the dismissal and, upon such vacatur, for the entry of a default judgment, arguing, among other things, that it was entitled to interest on the original sum sought, plus costs and disbursements. Defendant opposed the motion. By order dated June 13, 2019, the Civil Court denied the motion, but directed defendant to “pay the $50.00 difference between the payment made and the stipulation within 30 days.” Plaintiff appeals from so much of the order as denied its motion.

A default judgment can only be entered, pursuant to CPLR 3215 (i), in an action that is pending (see David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:21 [“the statute assumes the pendency of an action”]). In the case at bar, there is no indication in the record on appeal that defendant ever appeared in the action or answered the complaint. Moreover, the stipulation was not filed with the Civil Court, as it provided that it “may be filed with the Clerk of the Court without further notice only after issuance of service by mail of the within payments” (emphasis added), and the full amount due under the stipulation was concedely never paid. Therefore, it can reasonably be assumed that the action was administratively dismissed due to plaintiff’s failure to move for the entry of a default judgment within one year after defendant’s default in answering (see CPLR 3215 [c]).

“The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215 [c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]; see Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020 [2017]; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671 [2016]). The failure to timely move for the entry of a default judgment, however, may be excused upon a showing of sufficient cause which requires the plaintiff to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action (see Myoung Ja Kim v Wilson, 150 AD3d at 1020; HSBC Bank USA, N.A. v Grella, 145 AD3d at 671; Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764 [2015]). As plaintiff’s motion papers did not make a sufficient showing warranting the relief sought, we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion to vacate the dismissal of the complaint and, upon such vacatur, for the entry of a default judgment. We pass on no other issue.

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

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Law Office of David O’Connor, LLC (David O’Connor of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered April 18, 2018. The order, insofar as appealed from and as limited by the brief, failed to decide the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3126 and Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.17 (c), or, in the alternative, to strike the notice of trial, compel plaintiff to provide complete responses to defendant’s discovery demands and toll the accrual of no-fault statutory interest. By order entered April 18, 2018, the Civil Court denied the branch of defendant’s motion seeking to dismiss the complaint, granted the branches seeking to strike the notice of trial and compel discovery, and did not decide the branch seeking to toll the accrual of no-fault statutory interest.

Defendant’s appeal is limited by its brief to so much of the order as did not decide the branch of its motion seeking to toll the accrual of no-fault statutory interest. “However, no appeal lies from an order or portion thereof which fails to determine a motion or branch thereof (see Baez v First Liberty Ins. Corp., 95 AD3d 1250 [2012]). Thus, the branch of defendant’s motion which was not addressed by the Civil Court remains pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Katz v Katz, 68 AD2d 536, 542-543 [*2][1979])” (Quality Health Supply Corp. v Amica Mut. Ins. Co., 65 Misc 3d 157[A], 2019 NY Slip Op 51969[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). To the extent defendant, in a footnote in its brief, asks this court to review a subsequent order which addressed this issue, neither that order nor the underlying motion papers are in the record on appeal, and we decline the request without opining as to whether any such order would be reviewable upon this appeal (cf. CPLR 5517; Matter of Donato v Board of Educ. of Plainview, Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In view of the foregoing, we reach no other issue.

Accordingly, the appeal is dismissed.

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

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Law Office of Gabriel & Moroff, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated December 16, 2019. The order, insofar as appealed from, denied branches of defendant’s motion seeking summary judgment dismissing certain claims and granted branches of plaintiff’s cross motion seeking summary judgment on certain claims.

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

In this action by a provider to recover assigned first-party no-fault benefits, the summons and complaint seek $7,570.30 for unspecified claims. Defendant moved for summary judgment dismissing the complaint, setting forth a chart listing 16 numbered bills it had received and denied, listing for each bill the date the services were rendered and the amount charged. The total sum of the listed bills was $4,318.49, $3,251.81 less than the amount sought in the complaint.

Defendant alleged that it had denied all of the bills based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs), and that it had denied bills 14 to 16 on the additional ground of lack of medical necessity. Defendant also stated that it had paid a claim of $3,253.92 for services rendered on September 1, 2016 in a separate arbitration, and attached that [*2]arbitration award and proof of its payment.^[FN1] Based on that arbitration award and payment, defendant argued that the $3,253.92 claim should not be recoverable in this action.

Plaintiff cross-moved for summary judgment. Plaintiff did not annex any bills or set forth any particular dates of service or amounts of claims. Instead, plaintiff referred to and annexed defendant’s chart of the 16 numbered bills. In an affirmation in support of its cross motion and in opposition to defendant’s motion, plaintiff’s attorney did not mention, let alone dispute, defendant’s assertions that the $3,253.92 claim was part of this action and that it had been paid.

By order dated December 16, 2019, the District Court denied the branches of defendant’s motion as to “bills 1-8 and 10-13” on defendant’s chart and granted plaintiff’s cross motion thereon.^[FN2]

As to the bills denied solely on the ground of EUO nonappearance, the court, while acknowledging that defendant was not required to provide a reason for requesting an EUO in response to plaintiff’s objections thereto (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), nonetheless found that defendant was not entitled to summary judgment on this defense because it had treated plaintiff “as an adversary and created unnecessary obstruction to the claim process.”

The above-stated ground was not an appropriate basis to deny defendant’s motion as to the claims denied for failure to appear for an EUO. It is well settled that an appearance at a duly demanded EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Thus, as the proof submitted by defendant in support of its motion as to bills 1 through 13 was sufficient to establish that the initial and follow-up letters scheduling an EUO had been timely mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C., 35 AD3d 720), and that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond., 50 AD3d 1123), defendant was entitled to summary judgment dismissing bills 1 to 13.

Finally, we note that the District Court properly found, in effect, that the $3,253.92 claim should be dismissed, as it was undisputed that defendant had already paid plaintiff for that claim in a separate arbitration.

Consequently, based upon our review of so much of the order as was appealed from and upon the unchallenged findings of the District Court, we conclude that defendant is entitled to dismissal of the complaint in its entirety.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s motion for summary judgment dismissing the complaint is granted in its entirety and plaintiff’s cross motion for summary judgment is denied in its entirety.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 22, 2021

Footnotes

Footnote 1: The amount of this claim, $3,253.92, is approximately the remaining balance of the amount sought in the compliant, $3,251.81.

Footnote 2: The court also granted defendant’s motion as to “bills #14-16,” and plaintiff has not cross-appealed from that part of the order or submitted a respondent’s brief.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019, as amended by order of that court dated June 19, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. After the parties stipulated to adjourn plaintiff’s motion, and two months after the deadline provided for in the stipulation, defendant served a cross motion for summary judgment dismissing the complaint. In an order entered June 2, 2017, the Civil Court (Robin Kelly Sheares, J.) declined to consider defendant’s cross motion, treated defendant’s submission as opposition to plaintiff’s motion, denied plaintiff’s motion for summary judgment, and stated that plaintiff “made out their prima facie case for all purposes in this matter” and that the “[c]ase shall proceed to trial on the defenses raised in NF-10s.”

Defendant thereafter moved for summary judgment dismissing the complaint. By order dated April 3, 2019 and entered April 5, 2019, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion as moot on the ground that the June 2, 2017 order had denied its previous cross motion for summary judgment and that defendant “cannot move again for summary judgment.” By order dated June 19, 2019, the court “sua sponte supplement[ed] its April 3, 2019 order” and stated that “defendant’s attempt to submit a second motion for summary judgment . . . [*2]would effectively nullify [the] June 2, 2017 order.”

The Civil Court denied defendant’s motion based, in part, upon the rule against successive motions for summary judgment (see e.g. Williams v City of White Plains, 6 AD3d 609, 609 [2004]; Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2004]). However, that rule does not apply here because defendant’s initial cross motion for summary judgment was not considered by the court. The Civil Court also denied defendant’s motion based upon law of the case. However, the statement in the June 2, 2017 order that the “[c]ase shall proceed to trial on the defenses raised in the NF-10s” is not a directive that the matter proceed to trial. Rather, it is a directive as to what will happen at trial, as the court, in effect, made CPLR 3212 (g) findings in plaintiff’s favor limiting the trial to those defenses (see Maxford, Inc. v Erie Ins. Co. of NY, 60 Misc 3d 135[A], 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Moreover, the statement is not a judicial determination that decided an issue being litigated by the parties, and is therefore not the kind of determination that is binding law of the case (see generally People v Evans, 94 NY2d 499 [2000]). Thus, defendant’s instant motion, contrary to the Civil Court’s determination, is not moot.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered January 8, 2019. The order granted plaintiff’s motion for the entry of a default judgment.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for the entry of a default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for the entry of a default judgment.

The summons and complaint in this action were served by certified mail, return receipt requested, pursuant to CPLR 312-a. “Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff. The signed acknowledgment of receipt constitutes proof of service” (New York Med. Rehab., P.C. v Travelers Ins. Co., 40 Misc 3d 76, 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citation omitted]). Plaintiff’s papers did not contain an acknowledgment of service as required by CPLR 312-a, and plaintiff did not demonstrate that service was otherwise completed within 120 days of the filing of the summons and complaint in 2015 (see CCA 411). As plaintiff failed to establish that it had acquired personal jurisdiction over defendant (see CPLR 312-a [b]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Great Health Care Chiropractic, [*2]P.C. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 142[A], 2020 NY Slip Op 50735[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), plaintiff’s motion should have been denied.

Accordingly, the order is reversed and plaintiff’s motion for the entry of a default judgment is denied.

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

Decided on July 2, 2021

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

Decided on July 2, 2021

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

Decided on July 2, 2021

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

Bryan Cave, LLP (Jennifer M. Jordan and Matthew Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 7, 2019. The order denied 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 granted.

New Millennium Medical Imaging, P.C. (New Millennium) commenced this action to recover assigned first-party no-fault benefits, under claim number 3375202011, for medical services that it had provided to its assignors as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 13, 2011. Before New Millennium commenced this action, the insurer, Repwest Insurance Company (Repwest) had commenced a declaratory judgment action in the Supreme Court, New York County, against New Millennium, among other providers, and the assignors herein, alleging that Repwest had no duty to pay no-fault benefits to the named defendants therein under claim number 00341462-2011 with respect to an accident which had occurred on August 12, 2011.

After the providers and assignors failed to appear in the Supreme Court action, Repwest moved in the Supreme Court for an order granting Repwest leave to enter a default judgment, declaring that, because the providers had failed to appear at duly scheduled examinations under [*2]oath (EUOs), they were not entitled to reimbursement of no-fault claims arising out of an August 12, 2011 accident. The Supreme Court granted Repwest’s motion and declared that Repwest owes no duty to New Millennium and the other providers to pay no-fault claims “with respect to the August 12, 2011 collision referenced in the complaint.”

Thereafter, Repwest moved in the Civil Court for summary judgment dismissing New Millennium’s complaint on the ground that the action in the Civil Court is barred by the order in the declaratory judgment action. In support of its motion, Repwest submitted each assignor’s initial, signed application for no-fault benefits (NF-2), in which each assignor swore, under penalty of perjury, that the accident date for claim number 3375202011 was August 12, 2011. Repwest also submitted a transcript of an EUO of assignor Lionel Ames, who had testified that the accident occurred on August 12, 2011. (Repwest had also requested an EUO of the second assignor, but he failed to appear.) In addition, Repwest submitted a copy of a police accident report and letters of representation from the assignors’ attorneys, all of which set forth August 12, 2011 as the date of the accident. In a supporting affidavit, Repwest’s claims supervisor asserted that Repwest received these documents from the assignors’ respective attorneys, and that, before the Civil Court complaint was served, the only documents Repwest received for these assignors using the August 13th date instead of the August 12th date were claim forms (NF-3s) created by New Millenium, not by either of the assignors. The claims supervisor’s affidavit also explained that “Repwest assigned claim number 00337520-2011 for the BI (‘liability’) claims and claim number 00341462-2011 for the PIP (no-fault) claims” for the August 12th accident.

New Millennium opposed the motion, arguing only that, pursuant to the complaint, this action seeks reimbursement for claims arising out of an accident which occurred on August 13, 2011, the date which appears on the claim forms annexed to defendant’s motion papers, and that the Supreme Court order pertains to a different accident. By order entered November 7, 2019, the Civil Court denied defendant’s motion, finding that a triable issue of fact exists as to whether res judicata applies to the instant litigation.

We find that Repwest established, prima facie, that New Millenium’s assignors sought coverage for injuries arising from an August 12, 2011 accident that was the subject of the Supreme Court declaratory judgment action; that they did not seek coverage for any injuries arising from any accident that may have occurred on August 13, 2011; and that res judicata therefore bars the instant action. All of the evidence created by the people who were in the alleged accident uses the August 12th date. New Millenium’s submission of its own claim forms and its reliance on the allegations in its own complaint, which are not based upon personal knowledge as to the accident and which contradict the documents created and executed by the assignors themselves, assignor Ames’s sworn testimony and the police report, are insufficient to rebut Repwest’s showing. Indeed, rather than taking the position that a trial is required to determine the date of the accident at issue in this case, plaintiff’s trial and appellate counsel each had an ethical obligation to the court to inquire whether the August 13th date was a mere typographical error (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 3.1 Comment [2]; 3.3 Comment [10]).

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

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