Freiberg, Peck & Kang, LLP (Yilo Kang 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 (Sharon Bourne-Clarke, J.), entered September 21, 2018. The judgment, entered pursuant to an order of that court entered August 13, 2018 granting plaintiff’s motion for the entry of a default judgment and denying defendant’s cross motion, for, in effect, summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,190.34.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated August 13, 2018 is deemed a premature notice of appeal from the judgment entered September 21, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

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. In support of plaintiff’s motion for a default judgment, its counsel stated that defendant’s time to answer had expired. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that plaintiff had failed to serve a summons and complaint within 120 days of the commencement of the action (see CCA 411). By order entered August 13, 2018, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered on September 21, 2018 awarding plaintiff the principal sum of $2,190.34. We deem [*2]defendant’s notice of appeal from the order to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

“Proof that a defendant was properly served with process is a prerequisite to the entry of a default judgment against that defendant (see CPLR 3215 [f]; Cordero v Barreiro-Cordero, 129 AD3d 899 [2015]). ‘Service of the summons [is] complete . . . in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])’ ” (Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U], *2[App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], quoting 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]). As a result, 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]). Consequently, defendant’s cross motion should have been granted.

Accordingly, the judgment is reversed, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

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

Decided on June 12, 2020

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew Sarles of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 7, 2018. The order denied plaintiff’s motion to, in effect, vacate an order of that court entered February 27, 2017 granting, without written opposition by plaintiff, defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order entered February 7, 2018 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Republic Western Insurance Company (Republic) moved for, in effect, summary judgment dismissing the complaint on the ground that this action by plaintiff TAM Medical Supply Corp. (TAM) was barred under the doctrine of res judicata, by virtue of an order of the Supreme Court, New York County, which had granted a motion by Republic for a default judgment against TAM and its assignor, declaring that Republic is not obligated to pay for no-fault benefits on behalf of the assignor. TAM submitted papers in opposition to Republic’s motion, but they were not served timely in accordance with a briefing schedule stipulation which had been executed by attorneys for both parties. By order entered February 27, 2017, the Civil Court (Robin Kelly Sheares, J.) granted Republic’s motion, declining to consider TAM’s late opposition papers. Thereafter, TAM moved, in effect, to vacate the February 27, 2017 order, arguing that it had a reasonable excuse of law office failure for submitting untimely opposition to Republic’s motion and a meritorious claim of breach of contract. Republic opposed the motion. TAM appeals from an order of the Civil Court (Robin Kelly Sheares, J.), entered February 7, 2018, denying TAM’s motion.

The record before us indicates that TAM had moved, in effect, to vacate the February 27, 2017 order and, thus, was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to Republic’s motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the explanation of law office failure by TAM’s attorneys’ calendar clerk was insufficient to establish an excuse for submitting TAM’s opposition papers late. Consequently, it is unnecessary to determine whether TAM established a potentially meritorious opposition to Republic’s motion (see Rubinstein v Rubinstein, 128 AD3d 1047 [2015]). As TAM failed to demonstrate that the February 27, 2017 order should have been vacated, TAM’s motion was properly denied.

Accordingly, the order entered February 7, 2018 is affirmed.

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

Decision Date: June 12, 2020

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb and Selina Chin of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 31, 2018. The judgment, after a nonjury trial, awarded plaintiff the sum of $12,182.91.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

Pursuant to an order entered February 17, 2017 in this action by a provider to recover assigned first-party no-fault benefits, the only issue for trial was whether the supplies at issue were medically necessary. At the nonjury trial, plaintiff’s attorney moved to preclude defendant’s expert witness on the ground that disclosure of the witness was untimely. The Civil Court granted plaintiff’s application to preclude the witness and, since defendant did not have any other witnesses, found for plaintiff. A judgment awarding plaintiff the sum of $12,182.91 was entered on May 31, 2018.

“CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999] [internal quotation marks omitted]). Plaintiff attempted to demonstrate prejudice before the Civil Court. However, since defendant’s witness was the doctor who had prepared the peer review reports upon which the denials of the claims were based, his name was listed as such in each of the denial of claim forms, and his report was attached to defendant’s motion for summary judgment, it is clear that plaintiff was not prejudiced (see id.). Thus, the Civil Court erred in precluding defendant’s expert from testifying (see Burbige v Siben & Ferber, 115 AD3d 632 [2014]; Market St. Surgical Ctr. v Global [*2]Liberty Ins. Co.,61 Misc 3d 155[A], 2018 NY Slip Op 51822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

In view of the foregoing, this court need not reach defendant’s other argument.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg and Argyria A.N. Keltagias 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 June 29, 2018. The order granted defendant’s motion (1) to vacate an order of that court (Michael Gerstein, J.) entered November 29, 2017 granting plaintiff’s unopposed motion for the entry of a judgment based on defendant’s alleged failure to answer the complaint, (2) to, in effect, vacate the judgment entered March 1, 2018 pursuant to the November 29, 2017 order, and (3) upon such vacatur, to grant defendant summary judgment dismissing the complaint.

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

Plaintiff commenced this action on June 22, 2017 to recover assigned first-party no-fault benefits for services provided to Ludmilla Dejean, who was injured in a motor vehicle accident on or about June 7, 2011. The record contains an answer by defendant 21st Century Insurance Company (21st Century), along with an affidavit signed on July 21, 2017, attesting to service of the answer upon plaintiff’s attorneys by mail on July 21, 2017. On November 20, 2017, plaintiff served a motion seeking the entry of a default judgment on the ground that plaintiff had not received an answer from defendant. By order entered November 29, 2017, the return date of plaintiff’s motion, the Civil Court (Michael Gerstein, J.) granted the motion, finding, among other things, that defendant had “failed to appear for and answer the calendar call on the return date of the motion [and] to submit any opposition.” A default judgment was entered on March 1, 2018, pursuant to the November 29, 2017 order, awarding plaintiff the principal sum of $527.54.

In April 2018, defendant moved to vacate the November 29, 2017 order and, in effect, the [*2]judgment entered pursuant thereto and, upon such vacatur, for summary judgment dismissing the complaint on the ground that plaintiff’s action is precluded by an order of the Supreme Court, New York County, dated June 3, 2014, granting a motion by 21st Century for a default judgment against Freedom Chiropractic, P.C. and its assignor, Ludmilla Dejean, declaring, insofar as is relevant to the case at bar, that 21st Century is not obligated to reimburse Freedom Chiropractic, P.C. and its assignor for claims arising out of the June 7, 2011 accident, and that the applicable insurance policy is null and void with respect to that accident. Defendant also presented a judgment that was entered on July 21, 2017 in the Supreme Court, New York County, making the same declarations as were made in the June 3, 2014 order as to the parties’ rights. Plaintiff opposed defendant’s motion in the Civil Court. By order entered June 29, 2018, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion and awarded defendant summary judgment dismissing the complaint.

As plaintiff acknowledges on appeal, defendant argued that defendant “did not receive at least 13 days’ notice [of plaintiff’s motion for leave to enter a default judgment], the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the court of jurisdiction to entertain the motion” (Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente, 86 AD3d 532, 532-533 [2011]; Bianco v LiGreci, 298 AD2d 482, 482 [2002]). As the Civil Court was deprived of jurisdiction, the November 29, 2017 order and the March 1, 2018 judgment entered pursuant thereto were nullities (see Financial Servs. Veh. Trust, 86 AD3d at 533).

In any event, defendant has demonstrated an excusable default and a meritorious defense to the action. By virtue of the Supreme Court’s declaratory judgment, there has been a conclusive determination of the merits of the claim in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). In view of the foregoing, the Civil Court properly granted defendant’s motion, and we do not reach the parties’ remaining arguments.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg and Argyria A.N. Kettagias of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 11, 2018. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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, plaintiff Wave Medical Services, P.C. (Wave) moved for summary judgment and defendant Farmers New Century Insurance Co. (Farmers) cross-moved for summary judgment dismissing the complaint. In support of its cross motion, Farmers submitted an order that had been entered in a Supreme Court declaratory judgment action which granted a motion brought by, among others, Farmers seeking a default judgment against, among others, Wave. The order found specifically that the plaintiffs therein, including Farmers, were entitled to a default judgment on liability against Wave, but did not declare the rights of the parties. The Civil Court denied Wave’s motion for summary judgment and granted Farmers’ cross motion for summary judgment dismissing the complaint based upon the Supreme Court order. In response to Wave’s appeal, Farmers submits a judgment that was entered in the Supreme Court which declared, among other things, that Farmers has no duty to pay any no-fault [*2]benefits to Wave in any current or future proceeding because Wave is ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12).

A court “may in general take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). In light of the Supreme Court’s declaration that Farmers has no obligation to pay no-fault benefits to Wave in any current proceeding, set forth in the Supreme Court judgment of which we take judicial notice, we find that the Civil Court properly denied Wave’s motion for summary judgment and granted Farmers’ cross motion for summary judgment dismissing the complaint (see 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]).

Accordingly, the order is affirmed.

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

Paul Kenny

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 2, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that so much of the appeal as is from the portion of the order that denied defendant’s motion for summary judgment dismissing the complaint is dismissed as academic in light of this court’s determination of the remainder of the appeal; and it is further,

ORDERED that the order, insofar as reviewed, is reversed, with $30 costs, plaintiff’s cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor, who had purportedly been injured in a motor vehicle accident on March 9, 2015. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled examinations under oath and independent [*2]medical examinations, and plaintiff cross-moved for summary judgment. By order entered March 2, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Defendant correctly argues that plaintiff’s cross motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was 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]). Thus, the portion of the order which granted plaintiff’s cross motion for summary judgment must be reversed and plaintiff’s cross motion denied.

Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, on appeal, defendant argues that the complaint should be dismissed based upon a Supreme Court, Bronx County, declaratory judgment action against plaintiff and plaintiff’s assignor, among others, seeking a declaration that the defendants therein are not entitled to no-fault coverage for the March 9, 2015 accident. For the reasons stated in K.O. Med., P.C. v Mercury Cas. Co. (57 Misc 3d 155[A], 2017 NY Slip Op 51614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), in the interest of judicial economy, we take judicial notice of the judgment in that action which declares that plaintiff and its assignor “are not entitled to no-fault benefits as a result of a motor vehicle accident that occurred on 03/09/15” and that “any and all arbitrations or matters in a court of competent jurisdiction involving any of the Defendants as Assignee of Marie Vil . . . regarding a motor vehicle accident that occurred on 03/09/15, are permanently stayed and dismissed.” Upon taking such judicial notice, we award defendant summary judgment dismissing the complaint pursuant to CPLR 3212 (b) and dismiss as academic so much of the appeal as is from the portion of the Civil Court’s order that denied defendant’s motion for summary judgment (see id.; see also Maiga Prods. Corp. v Hertz Co., 61 Misc 3d 132[A], 2018 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

Paul Kenny

Law Office of David O’Connor, PC (David O’Connor of counsel), for appellant. Law Office of Aloy O. Ibuzor (Theresa M. Carrubba and William Angstreich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), entered November 20, 2018. The order denied plaintiff’s motion for leave to renew, in effect, its opposition to the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest, which prior motion had been granted in an order of that court dated June 18, 2018 to the extent of tolling no-fault interest from August 9, 2002 to August 18, 2017 and, upon renewal, to deny that branch of defendant’s motion.

ORDERED that the order entered November 20, 2018 is affirmed, with $25 costs.

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2001. Plaintiff served a notice of trial dated July 21, 2017. Defendant moved to strike the notice of trial and to dismiss the complaint or, in the alternative, to toll the accrual of no-fault statutory interest. By order dated June 18, 2018, the Civil Court granted the branch of defendant’s motion seeking to toll the accrual of no-fault interest to the extent of tolling the interest from August 9, 2002 to August 18, 2017, and denied the other branches of defendant’s motion. Plaintiff moved for leave to renew, in effect, its opposition to the branch of defendant’s motion seeking to toll the no-fault interest, arguing that there had been a change in the law. By order [*2]entered November 20, 2018, the Civil Court denied the motion.

Pursuant to CPLR 2221 (e) (2) and (3), a motion for leave to renew “(2) shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and (3) shall contain reasonable justification for the failure to present such facts on the prior motion.” In the June 18, 2018 order, the court tolled the no-fault interest based upon a provision of the No-Fault Regulations which states that, once an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65.15 [h], now 11 NYCRR 65—3.9 [d]; see also Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In Eagle Surgical Supply, Inc. v Country-Wide Ins. Co. (58 Misc 3d 154[A], 2018 NY Slip Op 50157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), this court declined to toll the interest because, in that case, it was not clear from the record that the plaintiff had caused the delay. Plaintiff’s motion for leave to renew was based upon the argument that Eagle Surgical Supply, Inc. represents a change in the law. Since that case merely applied the existing law to a new set of facts, it does not represent a change in the law, and plaintiff’s motion for leave to renew was properly denied.

Accordingly, the order is affirmed.

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

Paul Kenny

Decided on May 1, 2020

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

Decided on May 1, 2020

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