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

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 20, 2019. 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, with $30 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 grounds that the services at issue lacked medical necessity and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect, pursuant to CPLR 3212 (g), that defendant had established that it had timely denied plaintiff’s claims.

In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor before the services at issue had been rendered. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Defendant’s prima facie showing was not rebutted by plaintiff. 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, defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op [*2]51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

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 March 27, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $1,498.09.

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 March 27, 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 $1,498.09. 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.

For the reasons stated in Ksenia Pavlova, D.O., as Assignee of David Wright v Global Liberty Ins. (— Misc 3d &mdash, 2021 NY Slip Op — [appeal No. 2019-1634 K C], decided herewith), the judgment is affirmed.

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

ELLIOT, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

[*1]

Pavlova v Global Liberty Ins.

2021 NY Slip Op 50725(U) [72 Misc 3d 136(A)]

Decided on July 23, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 23, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-1661 K C

Ksenia Pavlova, D.O., as Assignee of Johanna Rosario, Respondent,

against

Global Liberty Insurance, Appellant.

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 March 27, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,807.40.

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 March 27, 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 $2,807.40. 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.

For the reasons stated in Ksenia Pavlova, D.O., as Assignee of David Wright v Global Liberty Ins. (— Misc 3d &mdash, 2021 NY Slip Op — [appeal No. 2019-1634 K C], decided herewith), the judgment is affirmed.

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

ELLIOT, J., taking part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

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]

In addition, the court stated that it was “undisputed that a $92.98 bill for the date of service (September 1, 2016) was resolved and paid in a separate arbitration case [] and should not be included herein. The $92.98 claim for bill #9 for September 1, 2016 is dismissed as resolved in a separate action.” The $92.98 amount set forth by the court does not match either the amount awarded to plaintiff in the separate arbitration referred to by defendant ($3,253.92) or the amount set forth on defendant’s chart for bill number 9 ($299.26), which did involve services rendered the same day as the services at issue in the arbitration, September 1, 2016. We conclude that in dismissing “bill #9,” the court meant to dismiss the $3,253.92 arbitration claim.

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021

[*1]

Maiga Prods. Corp. v American Ind. Ins. Co.

2021 NY Slip Op 50638(U) [72 Misc 3d 131(A)]

Decided on July 2, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-318 K C

Maiga Products Corp., as Assignee of Georgy, Charles, Respondent,

against

American Independent Ins. Co., Appellant.

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 7, 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 provided 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.

For the reasons stated in Daily Med. Equip. Distrib. Ctr., Inc., as Assignee of Balderrna, David v American Ind. Ins. Co. (___ Misc 3d ___, 2021 NY Slip Op ______ [appeal No. 2019-341 K C], decided herewith), 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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021