The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas 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 August 16, 2019. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking to dismiss the complaint.

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

This action by a provider to recover assigned first-party no-fault benefits was commenced by the filing of a summons and complaint on August 11, 2015 in Civil Court, Kings County. However, the summons indicated that the matter was to be heard in the Civil Court, Queens County, and required defendant to appear at the courthouse at 89-17 Sutphin Boulevard, Jamaica, New York. Defendant served an answer upon plaintiff on September 9, 2015, which listed the Civil Court, Queens County, as the venue in the caption, and the answer was allegedly filed there. Plaintiff thereafter moved for the entry of a default judgment against defendant, which motion was granted, without opposition, on December 3, 2018. A judgment in the total sum of $260.89 was entered on February 7, 2019.

Defendant moved to vacate the default judgment and to dismiss the complaint. In his affirmation in support, defense counsel stated, among other things, that the default judgment should be vacated and that plaintiff’s complaint “should be dismissed outright based on the deficiencies” on the face of the summons, the fact that plaintiff never modified its summons and [*2]complaint and the fact that the Civil Court, Kings County, does not have jurisdiction over this matter.

In opposition, plaintiff’s counsel argued that defendant failed to establish a reasonable excuse for its default or a meritorious defense.

In its reply affirmation, defense counsel argued that plaintiff’s “opposition papers do nothing to dispel the notion that its complaint must be dismissed.”

In an order entered August 16, 2019, the Civil Court granted the motion, vacated the default judgment and dismissed plaintiff’s complaint, as it was “fatally defective.”

As limited by its brief, plaintiff argues that so much of the August 16, 2019 order as dismissed the complaint should be reversed because dismissal of the complaint was not the proper remedy upon the vacatur of the default judgment. Rather, plaintiff should have been permitted to correct its error pursuant to CPLR 2001.

Plaintiff’s argument, that it should have been afforded an opportunity to amend the complaint pursuant to CPLR 2001, is unpreserved for appellate review, as plaintiff failed to raise the issue in opposition to defendant’s motion (see Gerschel v Christensen, 128 AD3d 455 [2015]; Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]).

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

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

Decided on May 28, 2021

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

Decided on May 21, 2021

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

Decided on May 21, 2021

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

Decided on May 21, 2021

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

Hollander Legal Group, P.C.(Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered May 4, 2018. The judgment, entered pursuant to a decision of that court dated November 16, 2017, after a nonjury trial, awarded plaintiff the principal sum of $3,695.34.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated November 16, 2017 is deemed a premature notice of appeal from the judgment entered May 4, 2018 (see CPLR 5520 [c]); and it is further,

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 defendant dismissing the complaint.

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 $3,695.34.

At the outset of the trial, the parties noted that, by a prior order, the issues for trial would be limited (see CPLR 3212 [g]) to defendant’s proof of timely mailing of the examination under oath (EUO) scheduling letters and the denial of claim forms. As defendant established that the EUO scheduling letters were timely mailed to plaintiff by first class mail, contrary to the Civil Court’s conclusion, it is irrelevant that defendant failed to establish that copies of such letters were also mailed to plaintiff by certified mail, return receipt requested (see Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 53 Misc 3d 142[A], 2016 NY Slip Op 51540[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In addition, the testimony of defendant’s no-fault claims examiner was sufficient to establish that the denial of claim forms were timely mailed (see St. Vincent’s Hosp. of Richmond [*2]v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff notwithstanding that the no-fault claims examiner did not have direct supervisory authority over defendant’s mail personnel (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

Decided on May 14, 2021

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

Decided on May 14, 2021

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

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan 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 (Robin Kelly Sheares, J.), entered February 8, 2019. The order, insofar as appealed from and as limited by the brief, granted plaintiff’s motion to compel discovery, denied defendant’s cross motion for summary judgment dismissing the complaint, and made implicit CPLR 3212 (g) findings in plaintiff’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims seeking to recover the sums of $325.99, $93.14, $46.57, and $46.57 are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel discovery. Defendant cross-moved for summary judgment dismissing the complaint on the grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), that defendant had never received one of the claims at issue, and that the unpaid portion of the $380.73 claim for services rendered for June 1, 2016 through June 13, 2016 exceeded the amount permitted by the workers’ compensation fee schedule. By order entered February 8, 2019, the Civil Court, insofar as is relevant to this appeal, granted plaintiff’s motion to compel discovery, and denied defendant’s cross motion, but found, in effect pursuant to CPLR 3212 (g), that plaintiff and defendant had established timely mailing of the claim forms and the denial of claim forms.

In support of its cross motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for the sums of $93.14, $46.57, and $46.57 on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs should have been granted.

The affidavit of defendant’s claims representative established that defendant had never received the claim seeking to recover the sum of $325.99 from plaintiff. As plaintiff never established that the claim was mailed to defendant, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted (see Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Contrary to defendant’s contention, defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon the unpaid portion of the $380.73 claim for services rendered June 1, 2016 through June 13, 2016 because defendant failed to conclusively establish its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Indeed, “the fee schedule does not, in and of itself, establish that defendant properly utilized the codes set forth within the workers’ compensation fee schedule to calculate the amount which plaintiff was entitled to recover for each service rendered (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009])” (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

As defendant did not oppose plaintiff’s motion to compel discovery, to the extent that the order compels defendant to respond to plaintiff’s discovery demands pertaining to the unpaid portion of the $380.73 claim for services rendered June 1, 2016 through June 13, 2016, there is no basis to disturb that portion of the order.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims seeking to recover the sums of $325.99, $93.14, $46.57, and $46.57 are granted.

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

Law Office of Tina Newsome-Lee (William Kleen 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 (Consuelo Mallafre Melendez, J.), entered February 25, 2019. The order, insofar as appealed from, denied defendant’s motion to vacate a notice of trial and certificate of readiness.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in February 2018, was accompanied by a demand for written interrogatories. Six days after defendant’s discovery demand was served, plaintiff served a notice of trial and certificate of readiness. Defendant then moved, in February 2018, to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. By order entered February 25, 2019, insofar as appealed from, the Civil Court denied defendant’s motion.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff had not served responses to defendant’s demand for written [*2]interrogatories despite being served with a demand for same, the notice of trial and certificate of readiness should have been vacated (see Fu-Qi Acupuncture, P.C., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.

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