The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Anthony Hawkins of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered March 7, 2024. The order, sua sponte, dismissed the complaint as barred by the doctrine of res judicata and denied, as moot, plaintiff’s motion to compel discovery and strike defendant’s affirmative defenses.

ORDERED that, on the court’s own motion, so much of the notice of appeal as is from the portion of the order as, sua sponte, dismissed the complaint is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is modified by vacating so much thereof as, sua sponte, dismissed the eighth and ninth causes of action, and denied, as moot, plaintiff’s motion to compel discovery and strike defendant’s affirmative defenses; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of plaintiff’s motion on the merits.

Plaintiff commenced this action on January 11, 2018 to recover assigned first-party no-fault benefits for services provided to Wesley Isaacs, who was allegedly injured in a motor vehicle accident on April 2, 2016. Plaintiff asserted eight causes of action, based on eight bills, and a ninth cause of action seeking interest and attorney’s fees. Plaintiff moved to compel discovery and strike defendant’s affirmative defenses. The Civil Court took judicial notice of a [*2]judgment that had been entered on April 24, 2017 in the Supreme Court, Nassau County, declaring that plaintiff had no right to receive payments for certain bills submitted to defendant. These bills included seven of the eight claims in the instant action. By order entered March 7, 2024, the Civil Court, sua sponte, dismissed the complaint as barred by the doctrine of res judicata and denied, as moot, plaintiff’s motion.^[FN1]

While no appeal as of right lies from the sua sponte portion of the March 7, 2024 order (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]), we deem the notice of appeal to be an application for leave to appeal from that portion of the order and grant plaintiff’s application (see CCA 1702 [c]).

By virtue of the Supreme Court declaratory judgment, of which the Civil Court properly took judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2005]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), there has been a conclusive determination of the merits of the first seven causes of action. Any judgment in favor of plaintiff in the present action as to the first seven causes of action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Consequently, the Civil Court properly dismissed the first through seventh causes of action as barred by the doctrine of res judicata, even though the declaratory judgment was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]). The eighth cause of action, however, involves a claim not included in the declaratory judgment action, and the ninth cause of action sought interest and attorney’s fees. Thus, the Civil Court should not have dismissed those causes of action.

Accordingly, the order is modified by vacating so much thereof as, sua sponte, dismissed the eighth and ninth causes of action, and denied, as moot, plaintiff’s motion. The matter is remitted to the Civil Court for a determination of plaintiff’s motion on the merits.

BUGGS, J.P., MUNDY and QUIÑONES, JJ., concur.

Roman Kravchenko and Jason Tenenbaum of counsel, for appellant. Short & Billy, P.C. (Seok Ho [Richard] Kang of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated October 12, 2023. The order denied a petition in a proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated March 27, 2023.

ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, the order is affirmed, without costs.

Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated March 27, 2023, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. The District Court (Ignatius L. Muscarella, J.) denied the petition.

In the decision, the arbitrator stated that, based on a stipulation, the only issue to be resolved was whether petitioner’s assignor had appeared for scheduled independent medical examinations (IMEs). The arbitrator found that, as the assignor had not appeared, the assignor had failed to comply with a condition precedent to coverage under the insurance policy. The provider appealed the award to the master arbitrator who, by an award dated March 27, 2023, upheld the arbitrator’s award. However, on appeal, petitioner contends that the arbitrator’s award was contrary to settled law because the IME scheduling letters were not timely, the IMEs themselves were not timely, and because respondent’s proffered defense was precluded as the denial of claim forms were untimely.

“A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981])” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Applying this standard, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award, as the award was predicated upon a stipulation between the parties and the arbitrator determined that, as a result of the stipulation, the only issue to be determined by the arbitrator was whether the assignor had appeared for the IMEs (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). Consequently, the District Court properly denied the petition to vacate the master arbitrator’s award (see Matter of Empire Mut. Ins. Co. v Jones, 151 AD2d 754 [1989]) but, in doing so, should have confirmed the award (see CPLR 7511 [e]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator’s award.

GARGUILO, P.J., GOLDBERG-VELAZQUEZ and CONWAY, JJ., concur.

Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A. (Ari Reiser of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated July 12, 2023. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a judgment entered on September 12, 2019 upon defendant’s failure to appear or answer the complaint and extended defendant’s time to serve its answer.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor for injuries he sustained in a motor vehicle accident which occurred on May 9, 2018. Plaintiff served the summons and complaint on the New York State Department of Financial Services (DFS) on April 18, 2019, pursuant to Insurance Law § 1212, and filed its affidavit of service on May 3, 2019. Defendant received the summons and complaint from the DFS on June 3, 2019 via regular mail. It is undisputed that defendant’s claims representative contacted plaintiff’s counsel’s office between June 12, 2019 and June 14, 2019, and defendant’s counsel contacted plaintiff’s counsel between June 27, 2019 and August 12, 2019, stating that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident and requesting that the lawsuit be voluntarily discontinued on the ground that the injuries were covered by workers’ compensation insurance. In an email sent on June 28, 2019, plaintiff’s counsel stated that she needed proof of these assertions, which defendant’s counsel provided via email on July 10, 2019. Defense counsel served an answer on [*2]July 1, 2019 and filed it on July 2, 2019. A default judgment was entered against defendant on September 12, 2019.

By notice of motion dated January 30, 2020, defendant moved to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint. Insofar as is relevant on appeal, defendant argued that the default judgment should be vacated, pursuant to CPLR 5015, as a timely answer had been served, and, in any event, defendant had a reasonable excuse for its delay in answering as well as a meritorious defense to the action. In support of its motion, defendant submitted the affidavits of its employees who averred that the summons and complaint was not received until June 3, 2019 and so the answer was timely. Any alleged delay in answering was due to the attempts of defendant’s employee and defendant’s counsel to obtain a voluntary discontinuance of the action. Defendant also submitted an affidavit by plaintiff’s assignor’s employment supervisor, in which the supervisor asserted that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which the assignor was injured. In opposition, plaintiff argued that defendant had not filed a timely answer and had otherwise failed to proffer a reasonable excuse for its delay in answering, and noted that plaintiff’s assignor, in his no-fault benefits application, had denied that the accident occurred within the scope of his employment. By order dated July 12, 2023, the Civil Court (Heela D. Capell, J.) granted the branch of defendant’s motion seeking to vacate the default judgment, finding that defendant had proffered a reasonable excuse for its delay in answering as well as a potentially meritorious defense, extended defendant’s time to serve its answer, and implicitly denied the branch of defendant’s motion seeking summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking to vacate the default judgment and extended defendant’s time to serve an answer.

Defendant established its entitlement to vacate the default judgment under CPLR 317. Although defendant specifically moved pursuant to CPLR 5015, under the circumstances presented, its motion to vacate the default judgment was also governed by CPLR 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Kircher v William Penn Life Ins. Co. of NY, 165 AD3d 1241 [2018]). A defaulting defendant who was “served with a summons other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108 [2017]). “There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay” (Kircher, 165 AD3d at 1243; Booso, 148 AD3d at 1108). Here, defendant established that it did not receive actual notice of the action until it received the summons and complaint from the DFS on June 3, 2019, and, thus, it did not have enough time to defend within the 30-day period set forth in CCA 402 (b).

Defendant also demonstrated the existence of a potentially meritorious defense to the action, as the affidavits of defendant’s employee and plaintiff’s assignor’s employment supervisor stated that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which he was injured, which would entitle him to workers’ compensation benefits (see Mani Med., P.C. v American Tr. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51185[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s [*3]motion seeking to vacate the default judgment.

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

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), dated December 28, 2023. 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, defendant appeals from an order of the Civil Court (Karen Lin, J.) denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the policy limits had been exhausted.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that the policy limits were exhausted before completed claims from plaintiff were received (see Alleviation Med. Servs., P.C., 55 Misc 3d 44, affd 191 AD3d 934; S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint. We reach no other [*2]issue.

Accordingly, the order is affirmed.

BUGGS, J.P., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A. (Ari Reiser of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated July 12, 2023. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a judgment entered on September 12, 2019 upon defendant’s failure to appear or answer the complaint and extended defendant’s time to serve its answer.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor for injuries he sustained in a motor vehicle accident which occurred on May 9, 2018. Plaintiff served the summons and complaint on the New York State Department of Financial Services (DFS) on April 18, 2019, pursuant to Insurance Law § 1212, and filed its affidavit of service on May 3, 2019. Defendant received the summons and complaint from the DFS on June 3, 2019 via regular mail. It is undisputed that defendant’s claims representative contacted plaintiff’s counsel’s office between June 12, 2019 and June 14, 2019, and defendant’s counsel contacted plaintiff’s counsel between June 27, 2019 and August 12, 2019, stating that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident and requesting that the lawsuit be voluntarily discontinued on the ground that the injuries were covered by workers’ compensation insurance. In an email sent on June 28, 2019, plaintiff’s counsel stated that she needed proof of these assertions, which defendant’s counsel provided via email on July 10, 2019. Defense counsel served an answer on [*2]July 1, 2019 and filed it on July 2, 2019. A default judgment was entered against defendant on September 12, 2019.

By notice of motion dated January 30, 2020, defendant moved to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint. Insofar as is relevant on appeal, defendant argued that the default judgment should be vacated, pursuant to CPLR 5015, as a timely answer had been served, and, in any event, defendant had a reasonable excuse for its delay in answering as well as a meritorious defense to the action. In support of its motion, defendant submitted the affidavits of its employees who averred that the summons and complaint was not received until June 3, 2019 and so the answer was timely. Any alleged delay in answering was due to the attempts of defendant’s employee and defendant’s counsel to obtain a voluntary discontinuance of the action. Defendant also submitted an affidavit by plaintiff’s assignor’s employment supervisor, in which the supervisor asserted that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which the assignor was injured. In opposition, plaintiff argued that defendant had not filed a timely answer and had otherwise failed to proffer a reasonable excuse for its delay in answering, and noted that plaintiff’s assignor, in his no-fault benefits application, had denied that the accident occurred within the scope of his employment. By order dated July 12, 2023, the Civil Court (Heela D. Capell, J.) granted the branch of defendant’s motion seeking to vacate the default judgment, finding that defendant had proffered a reasonable excuse for its delay in answering as well as a potentially meritorious defense, extended defendant’s time to serve its answer, and implicitly denied the branch of defendant’s motion seeking summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking to vacate the default judgment and extended defendant’s time to serve an answer.

Defendant established its entitlement to vacate the default judgment under CPLR 317. Although defendant specifically moved pursuant to CPLR 5015, under the circumstances presented, its motion to vacate the default judgment was also governed by CPLR 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Kircher v William Penn Life Ins. Co. of NY, 165 AD3d 1241 [2018]). A defaulting defendant who was “served with a summons other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108 [2017]). “There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay” (Kircher, 165 AD3d at 1243; Booso, 148 AD3d at 1108). Here, defendant established that it did not receive actual notice of the action until it received the summons and complaint from the DFS on June 3, 2019, and, thus, it did not have enough time to defend within the 30-day period set forth in CCA 402 (b).

Defendant also demonstrated the existence of a potentially meritorious defense to the action, as the affidavits of defendant’s employee and plaintiff’s assignor’s employment supervisor stated that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which he was injured, which would entitle him to workers’ compensation benefits (see Mani Med., P.C. v American Tr. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51185[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s [*3]motion seeking to vacate the default judgment.

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

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), dated December 28, 2023. 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, defendant appeals from an order of the Civil Court (Karen Lin, J.) denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the policy limits had been exhausted.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that the policy limits were exhausted before completed claims from plaintiff were received (see Alleviation Med. Servs., P.C., 55 Misc 3d 44, affd 191 AD3d 934; S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint. We reach no other [*2]issue.

Accordingly, the order is affirmed.

BUGGS, J.P., MUNDY and QUIÑONES, JJ., concur.

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Katryna L. Kristoferson of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v GEICO,76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent plaintiff contends that an issue existed with respect to counsel’s recollection of plaintiff’s failure to appear, such a contention is without [*2]merit, as, on its face, counsel’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).

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

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. McCormack, Mattei & Holler, P.C. (Jamila Shukry of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, Jr., J.), dated May 16, 2024. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, Jr., J.) dated May 16, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had materially misrepresented where the vehicle was garaged. As this defense is subject to preclusion (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), defendant was required to establish that it had timely denied the claims on that ground, but it failed to do so (see JFL Med. Care, P.C., 2022 NY Slip Op 51376[U]; Empire State Med. Supplies, Inc., 2017 NY Slip Op 50403[U]; Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is denied.

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Katryna L. Kristoferson of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v GEICO,76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent plaintiff contends that an issue existed with respect to counsel’s recollection of plaintiff’s failure to appear, such a contention is without [*2]merit, as, on its face, counsel’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).

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

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. McCormack, Mattei & Holler, P.C. (Jamila Shukry of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, Jr., J.), dated May 16, 2024. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, Jr., J.) dated May 16, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had materially misrepresented where the vehicle was garaged. As this defense is subject to preclusion (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), defendant was required to establish that it had timely denied the claims on that ground, but it failed to do so (see JFL Med. Care, P.C., 2022 NY Slip Op 51376[U]; Empire State Med. Supplies, Inc., 2017 NY Slip Op 50403[U]; Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is denied.

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.