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

Appeal from an order of the Civil Court of the City of New York, Kings County (L. Austin D’Souza, J.), dated May 8, 2023. 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 modified by providing that plaintiff’s cross-motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Trapezius Diagnostic Chiropractic, P.C. (Trapezius) commenced this action to recover assigned first-party no-fault benefits for medical services that it had provided to its assignor as a result of injuries which the complaint stated had been sustained in a motor vehicle accident on November 4, 2017. After Adirondack Insurance Exchange (Adirondack) filed its answer, it separately commenced a declaratory judgment action in Supreme Court, Nassau County, against Trapezius, among others, alleging that Adirondack had no duty to pay no-fault benefits to Trapezius with respect to an accident which had occurred on November 14, 2017. In a default judgment entered on March 5, 2021 against Trapezius, among others, based on their failure to appear or answer, the Supreme Court declared that the November 14, 2017 accident was a “staged accident” and that Adirondack was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by Trapezius arising from that accident.

Adirondack, thereafter, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the instant action was barred by virtue of the declaratory judgment. In support of its motion, Adirondack submitted an attorney’s affirmation and annexed the declaratory judgment and Trapezius’s complaint in that action. Plaintiff cross-moved for summary judgment. In opposition, defendant submitted an affidavit of its employee who stated that there was no accident involving the parties on any date other than November 14, 2017. By order dated May 8, 2023, the Civil Court (L. Austin D’Souza, J.) denied Adirondack’s motion and granted plaintiff’s cross-motion for summary judgment. The Civil Court stated that the accident date listed in the complaint was not the same as the one listed in the declaratory judgment and the affidavit of defendant’s employee did not mention a November 4, 2017 accident.

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]).

Adirondack failed to establish, prima facie, that, in this action, Trapezius sought to recover for medical services rendered to its assignor as a result of injuries allegedly sustained by its assignor in the November 14, 2017 accident that was the subject of the Supreme Court declaratory judgment action. Defendant’s submissions in support of its summary judgment motion highlight the discrepancy as to the date of the accident. The affidavit of defendant’s employee was not submitted in further support of defendant’s motion, and, in any event, the affidavit was conclusory in its statement that there was no accident on November 4, 2017 (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Adirondack failed to establish that the instant action is barred by res judicata (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; cf. Medical Supply of NY Corp. v Nationwide Ins. Co.,77 Misc 3d 133[A], 2022 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; New Millennium Med. Imaging, P.C. v Repwest Ins. Co., 72 Misc 3d 127[A], 2021 NY Slip Op 50577[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Moreover, Adirondack failed to establish its prima facie entitlement to judgment as a matter of law based on a theory of collateral estoppel, as it failed to establish that the issues litigated and determined in the prior action were identical to the issues on which preclusion is now sought (see Parisien v Kemper Ins. Co., 76 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

However, plaintiff’s cross-motion for summary judgment also should have been denied as there is a material issue of fact as to the date of the accident and the proof submitted in support of plaintiff’s cross-motion failed to establish that the claims 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 [*2]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 plaintiff’s cross-motion for summary judgment is denied.

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

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik 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 (Sandra E. Roper, J.), dated September 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default 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 September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

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. 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 (Sandra E. Roper, J.), dated September 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default 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 September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

Accordingly, the order is affirmed.

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

Gary Tsirelman, P.C. (Darya Klein 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 (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground “following the [] failure to appear at the last scheduled EUO” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

Gary Tsirelman, P.C. (Darya Klein 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 (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground “following the [] failure to appear at the last scheduled EUO” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).

ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,

ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.

Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.

The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”^[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).

For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.

BUGGS, J.P., MUNDY J., concur.

HOM, J. Taking no part.

Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).

ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,

ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.

Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.

The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”^[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).

For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.

BUGGS, J.P., MUNDY J., concur.

HOM, J. Taking no part.

Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.

Per Curiam.

Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.

In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.

We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.