Decided on October 4, 2019

Decided on September 27, 2019

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

Decided on September 20, 2019

The Rybak Firm, PLLC (Damin J. Toell of Cousnel), for appellant. Law Offices of Aloy O. Ibuzor (Janice A. Robinson 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 September 28, 2017. The order denied plaintiff’s motion to vacate an order of that court entered August 12, 2016 which, upon plaintiff’s failure to timely submit opposition to defendant’s prior motion for summary judgment dismissing the complaint, granted defendant’s prior motion.

ORDERED that the order entered September 28, 2017 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment. A stipulation signed by the parties on November 9, 2015 provided that opposition to defendant’s motion “must be served on or before” June 12, 2016, and “[a]ll papers served beyond the within deadline[] shall be deemed null and void.” It is uncontested that plaintiff’s opposition to defendant’s motion was served on July 13, 2016. By order entered August 12, 2016, the Civil Court granted defendant’s motion, noting that it was not considering plaintiff’s late opposition as it had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the August 12, 2016 order. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 denying plaintiff’s motion.

Where a plaintiff moves, pursuant to CPLR 5015 (a) (1), to vacate an order entered upon the plaintiff’s failure to oppose a motion, “the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Estrada v Selman, 130 AD3d 562, 562—563 [2015]; see also Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co., 54 Misc 3d 136[A], 2017 NY Slip Op 50118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d [*2]136[A], 2012 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In support of plaintiff’s motion to vacate, plaintiff’s attorney argued that due to law office failure, the “draft [of the opposition papers] was not . . . served on Defendant until one day after it was due to Defendant” (emphasis in the original). The record, however, indicates that plaintiff mailed its opposition papers to defendant on July 13, 2016, which was over a month past the stipulated due date of June 12, 2016. Under the circumstances, we find that plaintiff failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether plaintiff offered a potentially meritorious opposition to defendant’s motion (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914, 915 [2018]).

We note that, for the first time on appeal, plaintiff states that its counsel “misread the stipulation as providing a due date of July 12, 2016.” However, we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Decided on August 23, 2019

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

Gary Tsirelman, P.C. (Devon Riley Christian and David M. Gottlieb of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Edward M. Tobin and Adam Waknine of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), dated August 30, 2017. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered July 28, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by her brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court, entered July 28, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

At the outset, we note that the process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving a general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the [*2]action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). Here, we find that the Civil Court improvidently exercised its discretion in determining that defendant had provided a reasonable excuse for its default. Defendant submitted an affidavit by the employee allegedly served. However, the employee did not indicate whether he had in fact been served or even that he could not recall whether he had been served. Instead, he stated only that “[o]ne of my duties is to act as the receptionist” at defendant’s Brooklyn location and then purported to describe defendant’s business practices and procedures in recording receipt of summonses and complaints in its computer system. However, defendant’s employee did not indicate whether he had employed those practices and procedures at the time in question. An affidavit submitted by another of defendant’s employees, its claim representative, asserted conclusorily that defendant had not been served with the summons and complaint, since it did not have a record in its computer system of having received process. These affidavits are insufficient to warrant the relief requested (see Pierre J. Renelique Physician, P.C., as Assignee of Jose Mercado v Allstate Ins. Co., ___ Misc 3d ___, 2019 NY Slip Op 29225 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

Decided on August 23, 2019

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

Goldberg Miller & Rubin (Ruth Nazarian and Harlan Schreiber of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered September 19, 2017, deemed from a judgment of that court entered December 1, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 19, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,800.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered September 19, 2017, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment was subsequently entered on December 1, 2017, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The Civil Court properly found that defendant’s moving papers failed to establish, as a matter of law, that the first IME scheduling letter sent to plaintiff’s assignor had been timely, as the record indicates that it was mailed more than 30 days after defendant had received the claims at issue (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, as defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition [*2]precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish either that the claims at issue had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 judgment is reversed, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Karen L. Lawrence (Cheryl Scher 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 August 3, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action in the Civil Court on October 14, 2015 to recover assigned first-party no-fault benefits for services provided to its assignor, who was allegedly injured in an accident on October 24, 2011. Prior to the commencement of this action, defendant had brought a declaratory judgment action in the Supreme Court, Kings County, against plaintiff and its assignor herein, among other parties, pertaining to the October 24, 2011 accident. Thereafter, defendant moved in the Supreme Court for summary judgment, and, in an order entered April 28, 2014, the Supreme Court stated that defendant’s “motion for summary judgment for a declaration of a staged accident and that plaintiff is not liable in any respect for damages arising out of the accident is hereby granted in all respects on default” as to the present plaintiff and assignor, among other parties. Relying upon the Supreme Court’s order, defendant moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrine of res judicata. Defendant annexed a copy of the Supreme Court’s order, pleadings and motion papers. Plaintiff appeals from an order of the Civil Court entered August 3, 2017 which granted defendant’s motion.

We note that defendant failed to include res judicata as an affirmative defense in its answer, or to move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer. Defendant instead moved for summary judgment based on res judicata and also sought “such other and further relief as [the Civil Court] may deem just and proper.” As plaintiff, in opposition to defendant’s motion, failed to allege any prejudice (see Barrett v Kasco [*2]Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]) or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) resulting from defendant’s seeking summary judgment based on that unpleaded affirmative defense, we deem defendant’s answer amended to include the affirmative defense of res judicata (see Barrett, 84 AD2d at 556; Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In light of the order in the declaratory judgment action, the present action is barred under the doctrine of res judicata (see Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co., 52 Misc 3d 137[U], 2016 NY Slip Op 51076[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court’s order (see Schuylkill Fuel Corp., 250 NY 304, 306-307; SZ Med., P.C., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).

Accordingly, the order is affirmed.

Goldberg Miller & Rubin (Joshua C. Shack of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered May 11, 2017, deemed from a judgment of that court entered September 1, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 11, 2017 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,595.38.

ORDERED that the judgment is reversed, without costs, so much of the May 11, 2017 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered May 11, 2017, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment awarding plaintiff the principal sum of $1,595.38 was entered on September 1, 2017. Defendant’s appeal from the May 11, 2017 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish, as a matter of law, 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 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]). However, [*2]since defendant failed to establish that its follow-up IME scheduling letter was timely (see 11 NYCRR 65-3.6 [b]), its cross motion for summary judgment dismissing the complaint was properly denied. Defendant’s contention regarding the applicability of 11 NYCRR 65-3.5 (p) is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.

Accordingly, the judgment is reversed, so much of the May 11, 2017 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.