Law Offices of Buratti, Rothenberg & Burns (Bryan Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 1, 2019. The judgment, entered pursuant to an order of that court entered November 21, 2018 granting plaintiff’s motion for summary judgment, denying a cross motion made by defendant on August 25, 2011 for summary judgment dismissing the complaint, and rejecting a “cross” motion made by defendant on July 27, 2016, awarded plaintiff the principal sum of $1,670.32.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 21, 2018 is vacated, plaintiff’s motion for summary judgment is denied and the “cross” motion made by defendant on July 27, 2016 for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The parties’ attorneys subsequently entered into a stipulation setting forth a motion schedule, which adjourned the return date of the motion to December 22, 2011 and provided, among other things, that all opposition papers and cross motions must be served on or before September 22, 2011. On August 25, 2011, in accordance with the foregoing schedule, defendant 21st Century served a cross motion for summary judgment dismissing the [*2]complaint, arguing that it had timely denied the claims on the ground of material misrepresentation in the procurement of the insurance policy. Plaintiff opposed defendant’s cross motion in the Civil Court.

Before the Civil Court ruled on the motion and cross motion, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau County, and plaintiff herein appeared in that action. On December 19, 2011, the Supreme Court signed an order to show cause, which, among other things, temporarily stayed pending and future lawsuits by the instant provider and assignor, among others. By order entered May 29, 2012, the Supreme Court continued the stay pending the determination of the declaratory judgment action. By order entered May 6, 2015, the Supreme Court granted 21st Century’s motion for summary judgment. A judgment entered February 4, 2016 in the Supreme Court declared that 21st Century has no duty to provide coverage for specified collisions, including the incident herein, or for any claim for no-fault benefits arising out of those collisions. The judgment and orders with notices of their entry were served on the provider’s attorneys.

On July 22, 2016, based upon the declaratory judgment, defendant served what it denominated as a “cross” motion, with a return date of November 1, 2016, seeking an order in the Civil Court denying plaintiff’s motion for summary judgment, granting defendant’s summary judgment motion dismissing the complaint, granting defendant leave to amend its answer to include the affirmative defenses of collateral estoppel and res judicata and deeming the amended answer served. By order entered November 21, 2018, the Civil Court granted plaintiff’s motion and denied defendant’s August 25, 2011 cross motion on the ground that defendant’s answer had not asserted the affirmative defenses of collateral estoppel and res judicata, and found that the action had been “erroneously stayed.” The Civil Court further stated that it rejected defendant’s “additional cross motion,” served on July 27, 2016, as untimely under the parties’ motion schedule and “improper in violation of the one motion rule.” Defendant appeals from a judgment entered February 1, 2019 pursuant to the November 21, 2018 order, awarding plaintiff the principal sum of $1,670.32.

Contrary to the determination of the Civil Court, defendant’s failure to raise the affirmative defenses of collateral estoppel and res judicata in its answer was understandable and excusable since the declaratory judgment action had not been filed in the Supreme Court at the time defendant answered the instant complaint. Similarly, the order and judgment in the declaratory judgment action were not rendered until after defendant had cross-moved for summary judgment on August 25, 2011. Thus, as defendant argues, it had no reason to raise those affirmative defenses in the answer (see 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]).

Whether defendant’s July 27, 2016 papers be deemed a motion with a return date of November 1, 2016 or a “cross” motion, in either case, its July 27, 2016 papers served as a vehicle to introduce the Supreme Court’s orders and the declaratory judgment entered in favor of 21st Century, of which this court takes judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate [*3]Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]). “While it is true that multiple motions for summary judgment in the same action . . . are looked upon with disfavor, more than one motion is permissible where[, as here,] the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion” (Inter-Power of NY v Niagara Mohawk Power Corp., 259 AD2d 932, 933 [1999]). Consequently, under the particular circumstances presented herein, the Civil Court, for judicial economy, should not have rejected defendant’s 2016 “cross” motion and should have taken judicial notice of the declaratory judgment. In light of the declaratory judgment, defendant’s 2016 “cross” motion should have been granted under the doctrine of res judicata, as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the Supreme Court’s judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment entered February 1, 2019 is reversed, the order entered November 21, 2018 is vacated, plaintiff’s motion for summary judgment is denied and the “cross” motion made by defendant on July 27, 2016 for summary judgment dismissing the complaint is granted.

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

Decision Date: October 30, 2020

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant-respondent. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent-appellant (no brief filed).

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 19, 2018. The order, insofar as appealed from by defendant, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely. The order, insofar as cross-appealed from by plaintiff, made implicit CPLR 3212 (g) findings in defendant’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely are granted; 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 [*2]moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court entered November 19, 2018 as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely. Plaintiff cross-appeals from so much of the Civil Court’s order as, upon denying the aforementioned branches of defendant’s motion, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether defendant’s attorney was present at the scheduled EUOs. In support of its cross appeal, plaintiff argues that the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant should be vacated as an issue of fact exists because defendant failed to establish that it possessed objective reasons for requesting the EUOs.

Contrary to the determination of the Civil Court, the proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant’s attorney was present at the time for which the EUOs were scheduled to be held, and that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, with respect to plaintiff’s cross appeal, “as this court has repeatedly stated, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment” (Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). In opposition to the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely, plaintiff failed to demonstrate the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claim forms for services provided to Pia Daniels on March 22, 2016, March 28 to April 7, 2016, April 25, 2016, April 25 to May 5, 2016, and May 12, 2016, and the claims for services provided to James Stokely are granted.

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

Decided on October 30, 2020

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 30, 2020

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C. (Selina Chin and David M. Gottlieb of counsel) for appellant.

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel) for respondent.

Ordered that the order is reversed, with $30 costs, and defendant’s motion for, in effect, summary judgment dismissing the complaint is denied.

In this action by a corporate provider to recover assigned first-party no-fault benefits for services rendered to plaintiff’s assignor in 2009, defendant moved for, in effect, summary judgment dismissing the complaint. Defendant argued that plaintiff professional corporation could not enforce its claims because its sole shareholder had been legally disqualified from rendering professional services upon the revocation of his chiropractic license on June 28, 2010. The Civil Court granted defendant’s motion.

Initially, it is noted that defendant’s motion to dismiss the complaint pursuant to CPLR 3211 was made after issue had been joined. Generally, such a motion must be made “before service of the responsive pleading is required” (CPLR 3211 [e]), although “[w]hether or not issue [*2]has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While it is uncontested that the Civil Court did not notify the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable here, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). All the relevant facts are undisputed. Consequently, as the sole issue was the application of the Business Corporation Law, it was proper for the Civil Court to, in effect, treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).

Pursuant to Business Corporation Law §§ 1509 and 1510, when professionals lose their license, they are required to sever{**70 Misc 3d at 28} their ties with the professional service corporation. If the professional does not sever those ties, section 1509 grants the professional service corporation the authority to force the professional to do so, and failure to enforce this requirement constitutes a ground for forfeiture of the professional service corporation’s certificate of incorporation and its dissolution. Section 1510, among other things, directs the professional service corporation to repurchase the professional’s shares within six months of his disqualification. None of these requirements is self-executing.

Here, the professional has not complied with section 1509 and the professional service corporation has not repurchased his shares pursuant to section 1510, so the professional remains the corporation’s sole shareholder. No one has moved for forfeiture of plaintiff’s certificate of incorporation or its dissolution. Despite revocation of its shareholder’s professional license, plaintiff continued to exist and is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignor prior to June 28, 2010 (see A.B. Med. Servs., PLLC v National Grange Mut. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50154[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

The case of Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co. (15 Misc 3d 9 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]) is distinguishable. In that case, the death of the doctor who was the sole officer, director and shareholder of a professional service corporation required the dismissal of its appeal because no one remained with authority to prosecute the action. Here, however, the sole shareholder is alive and continues to have authority to act for the professional corporation as “an administrator, whose role is to preserve the value of, and prevent loss to, the [professional service corporation]” (Eastern Star Acupuncture, P.C. v Allstate Ins. Co., 36 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), rather than as a member of the profession from which he has been barred.

Section 1510 directs plaintiff to take actions that it concededly failed to do. It does not hold, however, that such a violation makes otherwise valid contracts unenforceable or that the{**70 Misc 3d at 29} corporation’s debtor should be entitled to withhold payment for services legally rendered. Consequently, there is no bar to plaintiff’s pursuit of reimbursement for services rendered to its assignor.

Accordingly, the order is reversed and defendant’s motion for, in effect, summary judgment dismissing the complaint is denied.

Aliotta, P.J., Siegal and Toussaint, JJ., concur.

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), 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 (Robin Kelly Sheares, J.), entered July 30, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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 it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 30, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Where, as here, no other verification request is outstanding (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there [*2]was a failure to comply with a condition precedent to coverage (see 11 NYCRR 65-3.8 [a] [1]; Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Veraso Med. Supply Corp. v 21st Century Ins. Co., 61 Misc 3d 146[A], 2018 NY Slip Op 51696[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Defendant asserted that the assignor had failed to appear on September 9, 2016, October 4, 2016, and November 1, 2016. As defendant did not deny the claims until November 14, 2016, which was more than 30 days after the second failure to appear, for the EUO scheduled for October 4, 2016, defendant is not entitled to summary judgment dismissing the complaint because defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Furthermore, as defendant raises no issue with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Accordingly, the order is affirmed.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered June 15, 2018. The order denied defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits arising from an accident that occurred on October 19, 2011, defendant defaulted in appearing for a scheduled court date. Defendant moved to, in effect, open its default and dismiss the complaint on the ground that, by amended order and judgment dated August 1, 2016, the Supreme Court, Bronx County, had declared, insofar as is relevant here, that defendant has no obligation to pay plaintiff for claims arising out of the accident underlying this claim. Defendant appeals from an order of the Civil Court entered June 15, 2018 denying defendant’s motion to, in effect, open its default and, upon opening the default, dismiss the complaint.

In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

Accordingly, the order entered June 15, 2018 is reversed and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

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

Hollander Legal Group , P.C. (Allan S. Hollander 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 (Richard J. Montelione, J.), entered November 13, 2018. The order, insofar as appealed from and as limited by the brief, 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 ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered November 13, 2018 as denied defendant’s motion.

We find that defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]), and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [2011]). Plaintiff failed to raise a triable issue of fact in opposition. Contrary to the Civil Court’s determination, “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C., 35 AD3d at 721; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, although the first EUO scheduling letter was mailed to the assignor before defendant received plaintiff’s first claim form, the scheduling letter was not a nullity (id.).

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

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 9, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

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

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]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Although defendant’s claim specialist referred to an affidavit annexed as exhibit K, which presumably discussed the payment log, an affidavit was not attached to the papers received by the court. Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. [*2]Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Oleg Rybak and Karina Barska of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 15, 2019. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss 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, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved for summary judgment. In an order entered March 15, 2019, insofar as appealed from as limited by the brief, the Civil Court granted defendant’s motion.

Initially, it is noted that defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) was made after issue had been joined. Generally, such a motion must be made “before service of the responsive pleading is required” (CPLR 3211 [a]), although “[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). Here, no such notice appears in the record; however, plaintiff does not raise the untimeliness of defendant’s motion, and, in any event, the specific issue raised regarding the lack of personal jurisdiction is purely a legal one, and notice is therefore not required (see generally Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

When service of the summons in a Civil Court action is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an [*2]acknowledgment of receipt of the summons and complaint, as provided for in CPLR 312-a (see CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport. Inc., 116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2008]).

We note that we do not consider any materials which are dehors the record on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]), nor do we consider any arguments that are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

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

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants and defendants. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeals from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order, insofar as appealed from by defendant Omni Indemnity Company and insofar as separately appealed from by defendants American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2go Auto Insurance, denied defendants’ motion to dismiss the complaint.

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

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs on each appeal, and defendants’ motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendants moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff cross-moved for summary judgment. In an order entered September 18, 2018, insofar as appealed from, the Civil Court denied defendants’ motion.

When service of the summons in the Civil Court is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an acknowledgment of receipt of the summons and complaint as provided for in CPLR 312-a (see [*2]CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendants (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport. Inc., 116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendants’ motion to dismiss the complaint is granted.

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