Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered March 12, 2024. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $2,705 pursuant to a stipulation of settlement entered into on December 14, 2001, failed to award prejudgment statutory compounded no-fault interest. The appeal from the judgment brings up for review so much of an order of the same court dated March 27, 2018 as denied plaintiff’s motion to recalculate interest using a compound, not simple, rate and, sua sponte, tolled the accrual of prejudgment statutory no-fault interest.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the March 27, 2018 order as denied plaintiff’s motion to recalculate interest using a compound, not simple, rate and, sua sponte, tolled the accrual of prejudgment statutory no-fault interest is vacated, plaintiff’s motion is granted, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits was settled in open court on December 14, 2001. Defendant did not pay the settlement amount, and a judgment was subsequently entered on February 10, 2017, pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On February 17, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the February 10, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. In opposition, defendant, relying on 11 NYCRR 65-3.9 (d), argued that plaintiff’s “unexplained delay of over fifteen years in entering a judgment and in otherwise prosecuting the action” should preclude any award of interest, simple or compound.

In an order entered March 27, 2018, the Civil Court (David M. Hawkins, J.) denied plaintiff’s motion and, sua sponte, vacated the February 10, 2017 judgment. The court noted that plaintiff “may, if he chooses, move to enter a judgment based upon the ‘settlement’ of the [*2]underlying action in the amount of $2,705.00, with no prejudgment” statutory no-fault interest. The court further noted that plaintiff would then “be entitled to post-judgment interest measured from the date of entry at the rate of ‘nine percent per annum.’ ” The court reasoned that the action was settled on December 14, 2001, with plaintiff agreeing to accept the principal sum of $2,705 and that plaintiff’s delay of about 15 years before entering judgment was an undue delay in prosecuting the action and, thus, plaintiff was not entitled to recover 15 years of accrued interest. The court noted that defendant had not cross-moved to vacate the February 10, 2017 judgment, but that it took into consideration defendant’s argument that, pursuant to 11 NYCRR 65-3.9 (d), plaintiff was not entitled to any interest as part of the judgment. The court further stated that, since plaintiff did not indicate whether the December 14, 2001 settlement was “made in open court, reduced to writing, or so-ordered by the Court, nor has he provided a written stipulation or a transcript of the settlement,” there is no indication that the settlement met the requirements of CPLR 2104 and, thus, the settlement was “not binding or enforceable upon the Defendant until a judgment was entered on February 10, 2017.” A judgment was entered on March 12, 2024 awarding plaintiff the total sum of $2,705.

Plaintiff correctly argues that the Civil Court erred in tolling the prejudgment statutory no-fault interest. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). While the court noted that plaintiff had not submitted proof that it complied with the provisions of CPLR 2104, the judgment states that it was entered “per stipulation of the parties,” defendant did not move to vacate the judgment as having been improperly entered pursuant to the stipulation, nor has defendant appealed from the judgment, and defendant does not deny that the parties agreed to settle the case. In the absence of evidence to the contrary, this court presumes that the judgment was properly entered pursuant to a properly executed settlement (see CPLR 2104, 5003-a; see also Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]). Moreover, defendant did not demonstrate that plaintiff had prevented defendant from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of statutory no-fault interest until entry of the judgment (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]). In addition, claims submitted before April 5, 2002, such as the one herein, are governed by former 11 NYCRR 65.15 (h), which provides for compound interest (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, statutory no-fault interest of 2% per month should be calculated at a compounded rate.

We note that, while the court’s March 27, 2018 order states that plaintiff would be entitled to postjudgment interest at the rate of nine percent per annum (see CPLR 5004), that is not the correct rate of interest because “Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which were specific directives, supersede the interest provisions contained in CPLR 5004, the more general statute” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d at 156).

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the March 27, 2018 order as denied plaintiff’s motion and, sua sponte, tolled the accrual of prejudgment statutory no-fault interest is vacated, plaintiff’s motion is granted, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

BUGGS, J.P. and QUIÑONES, J., concur.

OTTLEY, J. taking no part.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated June 26, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (D. Bernadette Neckles, J.) dated June 26, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses. Plaintiff argues on appeal that the order should be reversed, defendant’s motion should be denied, and either the matter should be remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, or in the alternative, plaintiff’s separate motion to dismiss defendant’s affirmative defenses should be granted.

Contrary to plaintiff’s contention on appeal, defendant’s verification requests, which [*2]sought information such as plaintiff’s management agreements, W-2 forms, business-related bank records, and lease agreements, to determine whether plaintiff was ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to a failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) were not improper (see Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2025 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

As plaintiff’s appellate brief notes, the order appealed from “made no mention of [plaintiff’s] Amended Cross-Motion.” Consequently, we do not reach any issue with respect to plaintiff’s amended cross-motion for summary judgment, as it was not addressed in the order appealed from (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). However, we note that, contrary to the contention in plaintiff’s appellate brief, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated June 26, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (D. Bernadette Neckles, J.) dated June 26, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment and plaintiff’s separate motion to dismiss defendant’s affirmative defenses. Plaintiff argues on appeal that the order should be reversed, defendant’s motion should be denied, and either the matter should be remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, or in the alternative, plaintiff’s separate motion to dismiss defendant’s affirmative defenses should be granted.

Contrary to plaintiff’s contention on appeal, defendant’s verification requests, which [*2]sought information such as plaintiff’s management agreements, W-2 forms, business-related bank records, and lease agreements, to determine whether plaintiff was ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to a failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) were not improper (see Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2025 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

As plaintiff’s appellate brief notes, the order appealed from “made no mention of [plaintiff’s] Amended Cross-Motion.” Consequently, we do not reach any issue with respect to plaintiff’s amended cross-motion for summary judgment, as it was not addressed in the order appealed from (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). However, we note that, contrary to the contention in plaintiff’s appellate brief, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Martyn, Smith, Murray & Yong, Esqs. (Thomas M. Martyn and Danny Miller of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated April 12, 2024. The order granted the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate a judgment of that court (Alan J. Schiff, J.) entered June 2, 2023 upon defendant’s failure to oppose plaintiff’s motion to enter judgment pursuant to CPLR 5003-a.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate the judgment entered June 2, 2023 is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

Plaintiff commenced this action in 1995 to recover assigned first-party no-fault benefits. In December 1997, the parties agreed to settle the matter for $885.54, and plaintiff tendered a general release, executed by himself and counsel, and a stipulation of discontinuance to defendant’s counsel. It is uncontroverted that, on March 9, 1998, the stipulation of [*2]discontinuance was filed by defendant’s counsel ^[FN1] in the Queens County Civil Court clerk’s office without paying plaintiff the sum due him, which sum remains unpaid.

In June 2017, after plaintiff applied to the clerk for the entry of a judgment, in effect pursuant to CPLR 5003-a (e), the clerk rejected the application because, in relevant part, the signed stipulation of discontinuance had been filed. Plaintiff challenged this rejection in a CPLR article 78 proceeding to compel the clerk to enter judgment and, by order entered August 20, 2020, the Supreme Court, Queens County (Pam Jackman Brown, J.), dismissed the article 78 proceeding as time-barred. In April 2021, plaintiff moved in the Civil Court for leave to enter a judgment with interest pursuant to CPLR 5003-a, which motion was granted (Alan J. Schiff, J.) on default. A judgment in the amount of $376,022.05 was entered against defendant on June 2, 2023.

In October 2023, defendant moved, among other things, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the default judgment. In an order dated April 12, 2024, the Civil Court (Ira R. Greenberg, J.) granted the branch of defendant’s motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4), holding that because the stipulation of discontinuance had been filed by defendant on March 9, 1998, the action was terminated and the court was without jurisdiction to consider plaintiff’s CPLR 5003-a motion.

At the outset, we note that, “[w]hen a defendant moves to vacate a default judgment pursuant to CPLR 5015 (a) (4) and (a) (1), the court is required to resolve the CPLR 5015 (a) (4) jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur pursuant to CPLR 5015 (a) (1)” (see LVNV Funding, LLC v Alvarado, 83 Misc 3d 136[A], 2024 NY Slip Op 51203[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

“The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions” (Pitt v New York City Hous. Auth., 106 AD3d 797, 797-798 [2013]). CPLR 5003-a requires a settling defendant to “pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff” (CPLR 5003-a [a]; see Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co., 77 Misc 3d 130[A], 2022 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). “If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of [a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff], the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements” (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 545 [2010]; see CPLR 5003-a [e]). The tender [*3]of a stipulation of discontinuance by a settling plaintiff to a settling defendant is a condition precedent to a plaintiff’s CPLR 5003-a (e) relief when a defendant fails to make prompt payment. Under the circumstances presented, the filing of the stipulation of discontinuance by defendant without it ever paying the sum due to plaintiff did not deprive the court of jurisdiction to entertain plaintiff’s motion for leave to enter a judgment pursuant to CPLR 5003-a (e) (see e.g. Levine v American Multi-Cinema, Inc., 208 AD3d 1230 [2022]; Ishikawa v 3010 Whaleneck Realty Corp., 2023 NY Misc LEXIS 29966 [Sup Ct, Nassau County 2023]; Trinidad v McIntyre, 2021 NY Misc LEXIS 24023 [Sup Ct, Queens County 2021]; Sequinot v Lawrence, 2020 NY Misc LEXIS 49757 [Sup Ct, Westchester County 2020]).

As the Civil Court did not determine the remaining branches of defendant’s motion, including the branch seeking, in effect pursuant to CPLR 5015 (a) (1), to vacate the default judgment, the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Accordingly, the order is the order is reversed, the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate the judgment entered June 2, 2023 is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: February 14, 2025

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated February 16, 2023. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) dated February 16, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court rejected that submission, which also included amended opposition to defendant’s motion, as “procedurally improper”, citing CPLR 2214. In the alternative, plaintiff argues that defendant’s motion should be denied.

Contrary to plaintiff’s contention on appeal, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, [*2]business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke 2 Physical Therapy, P.C., as Assignee of Lewis, Destiny v State Farm Mut. Auto. Ins. Co., — Misc 3d &mdash, 2025 NY Slip Op — [appeal No. 2023-961 K C], decided herewith).

“[C]ontrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is affirmed.

The decision and order of this court dated June 14, 2024 (2024 NY Slip Op 50803[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated August 23, 2023. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) dated August 23, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court treated that submission, which also included amended opposition to defendant’s motion, as an unauthorized sur-reply. In the alternative, plaintiff argues that defendant’s motion should be denied.

The record demonstrates that, after serving its cross-moving papers seeking summary judgment and opposing defendant’s motion, plaintiff served an amended cross-motion and [*2]amended opposition to defendant’s motion. Defendant subsequently served papers in further support of its motion for summary judgment and in opposition to both plaintiff’s cross-moving and amended cross-moving papers. As plaintiff’s amended papers were served almost six months before defendant’s reply papers were served, which reply papers addressed the merits of plaintiff’s amended papers, plaintiff’s amended papers were not unauthorized sur-reply papers (see CPLR 2214 [c]). Nevertheless, reversal is not warranted. Neither plaintiff’s initial cross-motion and opposing papers nor its amended papers were sufficient, individually or collectively, to demonstrate the existence of a triable issue of fact, since, “contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

Contrary to plaintiff’s further contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [2] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Indeed, if, as plaintiff contends, insurance companies should only be able to obtain such information using discovery demands after litigation has ensued, insurance companies would be confronted with a dilemma—to pay the claims for which the plaintiff may not be eligible to receive reimbursement and then commence a suit to recoup such payment (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322), or refrain from paying and wait until after plaintiff commences litigation to investigate via discovery whether plaintiff is eligible for reimbursement, which risks the insurance company being held liable for years of interest that would have accrued upon the claims in the interim at the rate of two percent per month (see 11 NYCRR 65-3.9 [a]), plus attorney’s fees (see 11 NYCRR 65-4.6). As plaintiff objected to the verification requests claiming they were nullities, the record establishes that plaintiff did not “provide within 120 calendar days from the date of the initial request either all such verification under [plaintiff’s] control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR 65-3.5 [o]). Consequently, the arguments raised on appeal by plaintiff lack merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff 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 13, 2023. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Heela D. Capell, J.) dated July 13, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court rejected that submission, which also included amended opposition to defendant’s motion, as “procedurally improper,” citing CPLR 2214. In the alternative, plaintiff argues that defendant’s motion should be denied.

Contrary to plaintiff’s contention on appeal, the affidavit by plaintiff’s owner in opposition to defendant’s cross motion for summary judgment, in which he stated “that he had mailed the [*2]requested verification ‘to the extent such responses were proper and in [his] possession’ does not raise a triable issue of fact, as it does not ‘demonstrate that [plaintiff] had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests’ ” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U], * 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], quoting Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see 11 NYCRR 65-3.5 [o]). Moreover, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke 2 Physical Therapy, P.C., as Assignee of Lewis, Destiny v State Farm Mut. Auto. Ins. Co., — Misc 3d &mdash, 2025 NY Slip Op — [appeal No. 2023-961 K C], decided herewith).

“[C]ontrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Michael J. Giordano of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to open its default in answering and to compel plaintiff to accept defendant’s late 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 services rendered to its assignor as a result of a motor vehicle accident which occurred on August 26, 2017. The summons and complaint were served upon defendant on or about December 22, 2020. Defendant did not serve an answer. Plaintiff applied for a default judgment and mailed defendant a copy of the default judgment application on October 28, 2021.

On November 17, 2021, defendant moved, pursuant to CPLR 3012 (d) and/or 2001, to open its default and to compel plaintiff to accept its late answer on the ground that 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 affidavit of an employee who worked at [*2]defendant’s attorney’s office who was responsible for serving the answer. She averred that, although the answer had been timely prepared, she had inadvertently failed to serve it. Defendant’s attorney argued that forgetting to serve the answer amounted to law office failure and should be excused by the Civil Court, especially considering that there was no evidence that this was willful or part of a pattern of neglect by defendant, or that plaintiff had been prejudiced by the default. As a meritorious defense, defendant asserted that the subject action was barred by res judicata or collateral estoppel. Defendant submitted a Supreme Court, Nassau County, declaratory judgment which declared that the August 26, 2017 motor vehicle accident involving plaintiff’s assignor was an intentional act and, therefore, there was no duty on defendant’s part to provide coverage for any claims arising therefrom.

Plaintiff cross-moved for summary judgment and, in opposition to defendant’s motion, argued that the affidavit of the law office employee was vague as to the details leading to the oversight in serving an answer and mere neglect was not a reasonable excuse. Moreover, the declaratory judgment did not have res judicata or collateral estoppel effect since it did not involve the same parties or causes of action as the subject action and was not fully litigated, as it was obtained on default.

By order dated January 12, 2024, the Civil Court (Sandra E. Roper, J.) granted defendant’s motion, finding that defendant had provided a reasonable excuse for its default and a meritorious defense to the action. The order also denied plaintiff’s cross-motion for summary judgment. Plaintiff appeals from so much of the order as granted defendant’s motion.

In order to open its default and obtain an order compelling plaintiff to accept a late answer, defendant had to provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action (see CPLR 3012 [d]; Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]) and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where there is a lack of evidence of willfulness or neglect (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Here, the law office failure resulted from an isolated, inadvertent mistake, not from repeated neglect (see Gutman v A to Z Holding Corp., 91 AD3d 718 [2012]), and plaintiff never demonstrated or suggested, in the Civil Court or on appeal, any prejudice caused by defendant’s default (see Parisien v Allstate Ins. Co., 76 Misc 3d 14 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 555 [2005]). Consequently, the Civil Court did not improvidently exercise its discretion in finding that defendant had provided a reasonable excuse.

Defendant also demonstrated the existence of a potentially meritorious defense to the action. The declaratory judgment from the Supreme Court, Nassau County, was a conclusive final determination that defendant was not obligated to provide coverage or reimbursements for [*3]any and all no-fault related services submitted by plaintiff and plaintiff’s assignor for the subject motor vehicle accident and, thus, the instant action should be barred by res judicata (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]), notwithstanding that the declaratory judgment was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; St. Mark’s Med. Health Care, PLLC v 21st Century Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50851[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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

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

Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Sixth District (James F. Matthews, J.), entered September 29, 2023. The judgment, insofar as appealed from, upon awarding petitioner assigned first-party no-fault benefits in the principal sum of $1,454.70, awarded petitioner $1,360 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for the entry of a new judgment following a determination of the amount of attorney’s fees to which petitioner is entitled, in accordance with this decision and order.

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 dated January 27, 2023, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claim which had sought assigned first-party no-fault benefits in the amount of $1,454.70. The District Court (James F. Matthews, J.) granted the petition and, among other things, awarded petitioner “its reasonable counsel fees in bringing this Petition.” The court directed petitioner to submit a judgment for $1,454.70 plus interest, and attorney’s fees pursuant to 11 NYCRR 65-4.6 (d) and [*2]11 NYCRR 65-4.10 (j) (4). Along with a proposed judgment, petitioner submitted an attorney’s affirmation seeking $3,900 as petitioner’s legal fees for the Article 75 proceeding (see 11 NYCRR 65-4.10 [j] [4]). A judgment, entered on September 29, 2023, awarded petitioner the principal sum of $1,454.70, plus $678.86 in interest, $230 in costs and fees, and $1,360 in attorney’s fees. Petitioner appeals, arguing that the award of $1,360 for attorney’s fees was inadequate.

Pursuant to 11 NYCRR 65-4.6 (d), attorney’s fees for the arbitration and master arbitration, in which petitioner ultimately prevailed, are not discretionary, as they are established by the no-fault regulations (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co.,54 Misc 3d 128[A], 2016 NY Slip Op 51793[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Such fees are limited to 20 percent of the total amount of first-party benefits awarded, plus interest, subject to a maximum fee of $1,360. Further, having successfully prevailed in the Article 75 proceeding to vacate the master arbitrator’s award, petitioner was also entitled to an additional award of reasonable attorney’s fees therefor pursuant to 11 NYCRR 65-4.10 (j) (4), which amount is to be fixed by the court (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414 [2020]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

The appropriate attorney’s fees due for the arbitration pursuant to 11 NYCRR 65-4.6 (d), calculated at 20 percent of $1,454.70 plus $678.86, is $426.71. In awarding a total sum of $1,360 in attorney’s fees for both the arbitration and the CPLR article 75 proceeding, we assume that the Civil Court mistakenly applied the $1,360 cap imposed by 11 NYCRR 65-4.6 (d) to the attorney’s fees to be awarded for the article 75 proceeding pursuant to 11 NYCRR 65-4.10 (j) (4), and therefore, in effect, awarded $933.27 in attorney’s fees for the article 75 proceeding, notwithstanding the fact that petitioner submitted a claim seeking $3,900 as reasonable attorney’s fees for that proceeding. Under the circumstances, the matter must be remitted to the District Court for a determination of the amount of reasonable attorney’s fees to which petitioner is entitled as a result of the court proceeding, without any regulatory cap thereon (see 11 NYCRR 65-4.10 [j] [4]), in addition to the $426.71 regulatorily mandated attorney’s fees for the arbitration (see 11 NYCRR 65-4.6 [d]). The court shall state the evidentiary basis for its determination (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2017]). We note that petitioner is also entitled to reasonable attorney’s fees for this appeal (see 11 NYCRR 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C., 170 AD3d 1168).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the District Court for the entry of a new judgment following a determination of the total amount of attorney’s fees to which petitioner is entitled pursuant to both 11 NYCRR 65-4.6 (d) and 11 NYCRR 65-4.10 (j) (4).

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

Lawrence N. Rogak, LLC (Lawrence N. Rogak and Alison Gladowsky of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre and Matthew Sledzinski of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered March 5, 2024. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,582.15.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held at which the parties stipulated that: (1) plaintiff had established its prima facie case; (2) defendant had timely denied plaintiff’s claim on the ground of lack of medical necessity; and (3) after defendant denied plaintiff’s claim, the insurance policy limits were exhausted due to defendant having paid claims which defendant received after it had denied the claim at issue. Defendant’s sole argument at trial was that the insurance policy limits had been exhausted by payment of claims which it had received after the instant claim had been denied. The District Court (C. Stephen Hackeling, J.) found in favor of plaintiff and a judgment was entered on March 5, 2024 awarding plaintiff the principal sum of $7,582.15.

Defendant’s sole contention on appeal, that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage, lacks merit (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Ortho Passive Motion, Inc. v Allstate Ins. Co., 61 Misc 3d 149[A], 2018 NY Slip Op 51749[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; but see Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]).

Accordingly, the judgment is affirmed.

GARGUILO, P.J., WALSH and CONWAY, JJ., concur.