The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 4, 2019. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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

In November of 2015, plaintiff commenced this action by filing a summons and complaint seeking to recover assigned first-party no-fault benefits for medical services it had provided to defendant’s insured as a result of a car accident that occurred on December 21, 2013. Defendant denied the allegations in its answer dated December 24, 2015, and asserted affirmative defenses. By an undated notice of motion, plaintiff moved for summary judgment and, in support thereof, plaintiff submitted its counsel’s undated affirmation. Defendant cross-moved to dismiss the complaint, relying, in part, on an unsigned and undated affidavit.

By order entered October 4, 2019, the Civil Court denied plaintiff’s motion and defendant’s cross motion. The court stated that “Defendant’s [cross] motion is denied for defective notice/papers. Plaintiff’s motion is denied for defective papers.” Plaintiff appeals from so much of the order as denied its motion.

While a court may disregard procedural irregularities (see CPLR 2001), we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion “for [*2]defective papers,” particularly when the court also denied defendant’s cross motion for the same reason.

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

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

GOLIA, J., dissents and votes to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff’s motion for summary judgment in the following memorandum:

CPLR 2001 provides, in relevant part, that, “if a substantial right of a party is not prejudiced, [a] mistake, omission, defect or irregularity shall be disregarded” (see Grskovic v Holmes, 111 AD3d 234, 242-243 [2013]; see also Harrington v Brunson, 129 AD3d 1581 [2015]; Henry v Gutenplan, 197 AD2d 608 [1993]). The Civil Court failed to identify the defect in plaintiff’s motion papers or any substantial right of a party that was prejudiced thereby. The majority points out that the notice of motion was undated as was the supporting affirmation. I note, however, that there was a return date on the notice of motion, and even the omission of a return date is not necessarily prejudicial and has been held to have been properly disregarded (see Harrington v Brunson, 129 AD3d at 1581). In any event, under the circumstances presented, the matter should be remitted to the Civil Court for identification of the defect and a determination of whether any substantial right was prejudiced thereby. In the event that it is established that a substantial right of a party is not prejudiced, the defect shall be disregarded and the court should decide the motion on its merits.

Accordingly, I vote to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff’s motion for summary judgment.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Darya Klein of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 11, 2019. The order denied 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, it is undisputed that the vehicle in question was insured by defendant under a Pennsylvania automobile insurance policy and that defendant received notice of plaintiff’s claim more than 30 days after the accident. Defendant moved for summary judgment dismissing the complaint, asserting that Pennsylvania substantive law applied, and arguing that, under Pennsylvania law, it was entitled to dismissal of the complaint because it had not received timely notice of either the accident or the claim for insurance benefits, and plaintiff had failed to demonstrate good cause for the lateness of the notice it had provided. In support of its motion, defendant submitted, among other things, a portion of its insured’s automobile insurance policy, which provided, in part: “We must be notified within 30 days, or as soon as practicable, of how, when and where the accident or loss happened.”

Plaintiff opposed the motion in part on the ground that it was untimely because it had been made more than 120 days after a notice of trial had been served. With respect to the substantive portion of the motion, plaintiff agreed that Pennsylvania law controlled, but argued that questions of fact as to whether plaintiff had given notice of the accident or loss as soon as practicable precluded summary judgment, and, in addition, that the governing policy did not require plaintiff or plaintiff’s assignor to provide a reasonable justification for its late notice. The Civil Court deemed the motion to have been timely made, but denied it on the ground that there existed a triable issue of fact as to whether defendant had been notified of the claim as soon as practicable.

We note that the record is devoid of any showing that a notice of trial, the Civil Court equivalent to a note of issue, was filed with the clerk of the Civil Court more than 120 days prior to the time when defendant made its summary judgment motion. Consequently, the motion was not shown to be untimely (see CPLR 3212 [a]).

It is undisputed that Pennsylvania law controls with respect to the substance of this controversy (see T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co., 59 Misc 3d 142[A], 2018 NY Slip Op 50665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see also Jimenez v Monadnock Constr., Inc., 109 AD3d 514, 516 [2013]). Pennsylvania insurance policies, such as the one at issue in this matter, pursuant to which an insured is required to provide the insurer with notice “as soon as practicable,” are governed by a “notice-prejudice” rule (see Lozado v Workers’ Compensation Appeal Board [Dependable Concrete Work and Uninsured Employers Guaranty Fund], 123 A3d 365, 378 [Pa Commw 2015]). Under the notice-prejudice rule, “unless the insurer establishes prejudice resulting from the insured’s failure to give notice as required under the policy, the insurer cannot avoid its contractual obligation” (Ario v Underwriting Members of Lloyd’s of London Syndicates, 996 A2d 588, 598 [Pa Commw 2010]; see Brakeman v Potomac Ins. Co., 472 Pa 66, 76-77, 371 A2d 193, 198 [1977]). The Civil Court correctly concluded that there was an unresolved issue of fact as to whether defendant had been given notice of the accident or loss as soon as practicable. In any event, as defendant’s motion papers failed to establish that it had been prejudiced by reason of the lateness of the notice it received, the Civil Court properly denied defendant’s motion.

Accordingly, the order is affirmed.

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

Decided on January 21, 2022

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova 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 February 18, 2020. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, in effect, granted plaintiff’s cross motion for summary judgment to the extent of (1) dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath and (2) awarding plaintiff partial summary judgment on liability.

ORDERED that the order, insofar as appealed from, is modified by vacating so much of the order as granted the branches of plaintiff’s cross motion seeking (1) summary judgment dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath with respect to the claims received between May 11, 2018 and June 22, 2018 and (2) partial summary judgment on liability with respect to the claims received between May 11, 2018 and June 22, 2018, and by providing that those branches of plaintiff’s cross motion are denied; 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. In an order entered February 18, 2020, the Civil Court denied defendant’s motion for summary judgment, stating that “Defendant [had] failed to issue the denials within 30 days of the second missed EUO,” and granted plaintiff’s cross motion to the extent of dismissing the affirmative defense that plaintiff failed to appear for duly scheduled EUOs and awarding plaintiff partial summary judgment on liability.

With respect to the claims received by defendant between May 11, 2018 through June 22, 2018, the record demonstrates, prima facie, that the EUO scheduling letters were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff, that plaintiff failed to appear for those EUOs, and that defendant timely denied those claims on the ground that plaintiff had failed to appear. However, as we find that a triable issue of fact exists as to whether those EUOs were scheduled to be held at a place that was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant failed to establish that it is entitled to summary judgment dismissing so much the complaint as sought to recover upon the claims received between May 11, 2018 through June 22, 2018. Consequently, neither party is entitled to summary judgment upon those claims.

While defendant further contends that the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims it received between March 22, 2018 and April 27, 2018 should have been granted and that the Civil Court erred in granting the branch of plaintiff’s cross motion seeking partial summary judgment on liability upon those claims, defendant’s argument lacks merit. The record establishes that defendant failed to timely deny those claims (see Island Life Chiropractic Pain Care, LLC v 21st Century Ins. Co., — Misc 3d &mdash, 2021 NY Slip Op 21340 [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[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Furthermore, here there is no basis to disturb so much of the order as granted plaintiff partial summary judgment as to liability upon these claims.

Accordingly, the order, insofar as appealed from, is modified by vacating so much of the order as granted the branches of plaintiff’s cross motion seeking (1) summary judgment dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath, with respect to the claims received between May 11, 2018 and June 22, 2018 and (2) partial summary judgment on liability with respect to the claims received between May 11, 2018 and June 22, 2018, and by providing that those branches of plaintiff’s cross motion are denied.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Gallo, Vitucci & Klar, LLP, for respondent (no brief filed).

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, defendant moved for summary judgment dismissing the complaint on the ground that, pursuant to Florida law, there was a lack of coverage due to the valid rescission, ab initio, of the Florida automobile insurance policy in question. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policy was renewed, about three weeks before the accident, the policyholder, who is also the assignor, did not reside, or garage the vehicle, in Florida. Plaintiff opposed the motion. By order entered March 10, 2020, the Civil Court granted the motion. On appeal, plaintiff contends that New York law, which does not permit retroactive rescission, controls and, in any event, that defendant failed to demonstrate that the insurance policy had been properly rescinded in accordance with Florida law.

Upon a review of the record, we find that the Civil Court properly applied Florida law to the substantive issue involved herein (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]). In order to demonstrate that an [*2]automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the policyholder and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Contrary to plaintiff’s arguments, in the case at bar, defendant was not required to demonstrate the basis for the retroactive rescission in support of its motion for summary judgment (see Craigg v Infinity Select Ins. Co., 38 Misc 3d 56, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

As defendant’s motion papers demonstrated that a rescission notice was sent to the policyholder, and that defendant had returned all premiums paid to the policyholder within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co., 68 Misc 3d 129[A], 2020 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d at 179). Plaintiff failed to raise a triable issue of fact in opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered October 7, 2019. The order denied as untimely 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 filed a notice of trial on June 14, 2018. On October 12, 2018, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant’s motion was untimely. By order entered October 7, 2019, the Civil Court denied defendant’s motion on the ground that it was untimely.

Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.

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., TOUSSAINT and GOLIA, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 17, 2021

APPEARANCES OF COUNSEL

Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel) for appellant.

Goldman Law Offices (Anna Goldman of counsel) for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of the branches of defendant’s motion seeking to, in effect, vacate the order entered April 20, 2017, granting plaintiff’s motion to enter a default judgment and, upon such vacatur, to dismiss the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant did not appear or answer the complaint. By order entered April 20, 2017, the Civil Court (Susan Quirk, J.) granted, on default, plaintiff’s motion to enter a default judgment. In September 2017, defendant moved to, among other things, in effect, vacate the April 20, 2017 order, alleging that it had not received plaintiff’s motion, and, upon such vacatur, to dismiss the complaint for lack of personal jurisdiction. Plaintiff opposed the motion. As limited by its brief, defendant appeals from so much of an order entered July 12, 2019, as denied the foregoing branches of defendant’s motion.

“It is axiomatic that the failure to serve process in an action leaves the court without [*2]personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013] [internal quotation marks omitted]). Lack of personal jurisdiction, and thus the question of whether there ever was a default, is a “threshold issue” (McSpedon v Levine, 158 AD3d 618, 620 [2018]). Here, defendant submitted a detailed affidavit by the claims clerk alleged to have received service of process, which affidavit was sufficient to rebut the{**74 Misc 3d at 43} process server’s affidavit and raise an issue of fact necessitating a traverse hearing (see Cautious Care Med., P.C. v 21st Century Ins. Co., 72 Misc 3d 140[A], 2021 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

We note that, while CPLR 3215 (c) requires a plaintiff which seeks to enter a default judgment more than one year after the default to show sufficient cause why the complaint should not be dismissed, on the record before us, there is no basis to find that plaintiff herein failed to make such a showing. Plaintiff’s motion papers are not included in the record and defendant did not raise this argument in the Civil Court.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of the branches of defendant’s motion seeking to, in effect, vacate the order entered April 20, 2017, granting plaintiff’s motion to enter a default judgment and, upon such vacatur, to dismiss the complaint.

Weston, J. (concurring in part and dissenting in part, and voting to reverse the order, insofar as appealed from, and grant the branches of defendant’s motion seeking to vacate the order entered April 20, 2017, and to dismiss the complaint as abandoned). On or about December 10, 2010, plaintiff, a provider, commenced this action seeking to recover assigned first-party no-fault benefits. Seven years later, plaintiff moved for the entry of a default judgment, which motion was granted. Plaintiff alleged that defendant was served on or about December 16, 2010, by leaving a copy of the summons and complaint with an authorized agent for the corporation. The April 20, 2017 order granting the entry of a default judgment makes no mention that any excuse for the delay was offered or that good cause was shown.

In September 2017, defendant moved to vacate the April 20, 2017 order on the grounds that defendant was not personally served. An affidavit from the person allegedly served denying service was attached to the papers. Further, pursuant to CPLR 5015 (a) (1), defendant asserted that the lack of service provided a reasonable excuse for the default and submitted a meritorious defense to the action.

It is well settled that “[w]hen a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned” (Solano v Castro, 72 AD3d 932, 932-933 [2d Dept 2010]; see CPLR 3215 [c]; Perricone v City of New York, 62 NY2d 661, 663 [1984];{**74 Misc 3d at 44} Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2d Dept 2008]; Mattera v Capric, 54 AD3d 827 [2d Dept 2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2d Dept 2005]; Monzon v Sony Motor, 115 AD2d 714 [2d Dept 1985]). The procedure for obtaining a default judgment is plainly set forth in CPLR 3215 (c). CPLR 3215 (c) provides

“[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the [*3]complaint should not be dismissed” (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 750 [2d Dept 2014]; see also Baruch v Nassau County, 134 AD3d 658, 659 [2d Dept 2015]).

“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 [2d Dept 2011]; see Bank of N.Y. v Kushnir, 150 AD3d 946 [2d Dept 2017]; Butindaro v Grinberg, 57 AD3d 932 [2d Dept 2008]; County of Nassau v Chmela, 45 AD3d 722 [2d Dept 2007]). It is not necessary that a motion to dismiss be made, since the statute provides the court with the authority not to enter judgment on an abandoned complaint. The court on its own initiative should dismiss the complaint in the absence of compliance with the statute (see U.S. Bank, N.A. v Laulicht, 176 AD3d 892, 893 [2d Dept 2019]; Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963 [2d Dept 2018]).

Here, it is undisputed that plaintiff failed to seek entry of a judgment within one year of the alleged default. There is no explanation for this failure in the record. The court below should not have entered judgment in favor of plaintiff, but rather should have dismissed the complaint as abandoned. Inasmuch as defendant now seeks to vacate the order granting entry of a default judgment, the mandatory language of CPLR 3215 (c) requires the dismissal of the complaint.

Moreover, the authority for this court to dismiss the complaint is plain. Pursuant to CPLR 3215 (c), the court upon its own initiative can dismiss an action which has been deemed abandoned. In Perricone v City of New York (62 NY2d at 663), the Court noted:{**74 Misc 3d at 45}

“Having failed to comply with the statutory requirements, plaintiff’s complaint was dismissed by the Appellate Division and we find no legal error in that decision. (See Chin v Hooker, 95 AD2d 790; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660.)

“Plaintiff’s argument that the city waived its right to move for dismissal of the complaint is unpersuasive inasmuch as the Appellate Division exercised its authority under CPLR 3215 (subd [c]) and dismissed the complaint on its own initiative. Nor can plaintiff be heard to complain that he had no notice that the Appellate Division intended to act pursuant to the statute and, therefore, had no opportunity to demonstrate sufficient cause why the complaint should not be dismissed. Plaintiff was aware for more than ten years that the city had not answered, yet failed to move for a default judgment.”

Under the circumstances presented here, the seven-year delay in proceeding to enter judgment after the default should not be excused. The motion for the entry of a default judgment should have been denied (see Shinn v City of New York, 65 AD3d 621, 622-623 [2d Dept 2009]; Butindaro v Grinberg, 57 AD3d at 933; Staples v Jeff Hunt Devs., Inc., 56 AD3d at 460; Mattera v Capric, 54 AD3d at 828). A traverse hearing would not resolve the underlying delay by plaintiff in seeking a default judgment and the consequences of CPLR 3215 (c) thereto. Accordingly, defendant’s motion to vacate the April 20, 2017 order should be granted and the complaint dismissed.

Toussaint, J.P., and Elliot, J., concur; Weston, J., concurs in part and dissents in part in a separate memorandum.

Decided on December 10, 2021

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

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

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, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant [*2]then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

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

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

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, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the [*2]Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

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