Decided on January 18, 2019

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

Decided on January 18, 2019

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

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 26, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,940.

ORDERED that the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

This action by a provider to recover assigned first-party no-fault benefits as to seven claims was consolidated for a nonjury trial with five other actions. After the trial, the Civil Court found that plaintiff had established its prima facie case in this action and that defendant had failed to establish its defenses, and awarded judgment to plaintiff on all seven claims.

Contrary to defendant’s argument, plaintiff established its prima facie case as to the seven claims at issue in this action, totaling $6,940, as plaintiff demonstrated that the bills had been received by defendant and had not been paid (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

However, defendant correctly argues that it established that it had properly and timely [*2]denied three of the claims, for $605, $285 and $355, respectively, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant’s proof at trial was sufficient to demonstrate that defendant had timely mailed the IME scheduling letters and denials at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear at those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As defendant proved that the assignor had violated a condition precedent to coverage (see id.), plaintiff was not entitled to recover on those bills.

Defendant’s remaining arguments lack merit.

Accordingly, the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

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

Decision Date: January 18, 2019

Decided on January 17, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on January 17, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In April 2011, plaintiff commenced this action, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 22, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move, before the default date, either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Here, “plaintiff’s bare statement in its attorney’s affirmation, after a [37-day] delay in responding to defendant’s 90-day notice, that its ‘delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,’ failed to establish a justifiable excuse for its delay” (Midwood Total Rehab, P.C. v GEICO Ins. Co., 59 Misc 3d 146[A], 2018 NY Slip Op 50763[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, January 11, 2019

APPEARANCES OF COUNSEL

Marshall & Marshall, PLLC (Naim M. Peress and Jeffrey Kadushin of counsel) for appellant.

Zara Javakov, P.C. (Zara Javakov of counsel) for respondent.

Ordered that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits from Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC Ins. Co.), the parties stipulated that since the sole issue was whether plaintiff had exhausted its remedies, “if [MVAIC] can prove . . . that there was potential coverage through the assignor’s son who . . . lived with him on the date of the loss, then MVAIC has no burden to pay . . . these claims.” The only witness at trial was an employee of the New York Liquidation Bureau (NYLB), who testified pursuant to a subpoena served by MVAIC. He stated that, after the Supreme Court had entered an order placing Long Island Insurance Company (LIIC) into liquidation, NYLB had seized all of LIIC’s books and records, and administered LIIC’s claims, and that LIIC was closed. In response to the subpoena, he reviewed documents in a file seized from LIIC regarding a particular date of loss, a named person and a claim number. Among the documents he reviewed was an insurance policy from LIIC which was apparently issued to a [*2]person living at the same address as plaintiff’s assignor and whose name was the same as the assignor’s son with the exception of one letter. The Civil{**62 Misc 3d at 74} Court held that the documents were not admissible because the NYLB witness was unable to establish that the documents were admissible as business records pursuant to CPLR 4518. Although the court stated that the witness was credible, the court held that the issue to be resolved “was whether or not there was an insurance policy or coverage at the time of the accident” and that MVAIC had failed to sustain its burden.

[1, 2] The record establishes that NYLB seized records of LIIC after an order of liquidation of LIIC had been entered by the Supreme Court. Moreover, claims examiners employed by NYLB utilize the records to administer outstanding no-fault claims which have been submitted to LIIC. As NYLB incorporates and relies upon the records of LIIC, the records are admissible (see People v DiSalvo, 284 AD2d 547 [2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]; cf. West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949 [2002]). Since the pretrial stipulation simply required MVAIC to prove “that there was potential coverage,” MVAIC was not required to prove that “there was an insurance policy or coverage at the time of the accident.” In light of the foregoing, MVAIC sustained its burden of proving “that there was potential coverage.” Plaintiff, as assignee, was required to exhaust its remedies against all potential insurance carriers before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Orlin & Cohen Orthopedic Assoc. v Motor Veh. Acc. Indem. Corp., 58 Misc 3d 132[A], 2017 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, plaintiff did not demonstrate that it had exhausted its remedies.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg and Smauel Kamara 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 9, 2016. The order granted the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate a judgment of that court entered October 31, 2014 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the judgment entered October 31, 2014, and to compel plaintiff to accept defendant’s answer are denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service indicates that defendant was served on September 16, 2014 by delivery of the summons and complaint to Grace Annunziata at defendant’s Brooklyn office. The affidavit described Annunziata and stated that she was known to the process server to be defendant’s employee, who was authorized to accept delivery at that Brooklyn address. Defendant failed to appear or answer, and, upon plaintiff’s motion, a default judgment in the amount of $4,057.51 was entered against defendant on October 31, 2014. In October 2015, defendant moved, in effect pursuant to CPLR 5015 (a) (1) and (4), to, among other things, vacate the default judgment and [*2]compel plaintiff to accept defendant’s answer, which was annexed to the motion papers. Defendant’s claim representative asserted in an affidavit in support of the motion that the summons had not been “served on Allstate as alleged.” Defendant’s motion also sought the alternative relief of modification of the judgment on the ground that the interest was not correctly calculated. Plaintiff opposed the motion. By order entered August 9, 2016, the Civil Court granted the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer, finding that defendant had established a reasonable excuse for the default and a potentially meritorious defense to the action.

A defendant seeking to vacate a default in appearing or answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Here, the summons and complaint were served by a process server, who provided a description of Grace Annunziata, the recipient of service, and attested that Annunziata was known to him to be defendant’s employee who was authorized to accept service at defendant’s address. “A process server’s affidavit of service constitutes prima facie evidence of proper service on a corporation pursuant to CPLR 311 (a) (1)” (Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673, 673 [2015] [internal citations omitted]).

Although a defendant’s sworn denial of receipt of service may rebut the presumption of proper service established by the process server’s affidavit, defendant did not submit an affidavit from Annunziata denying either that she had been authorized to accept service or that she had accepted service of the summons and complaint (see 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]). Rather, defendant proffered an affidavit by its claim representative, who admitted that defendant maintained a claims office at the same Brooklyn address which is listed in the affidavit of service. Defendant’s claim representative’s assertion that the summons was not “served on Allstate as alleged” lacked sufficient detail to rebut the prima facie proof of proper service set forth in the affidavit of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]) and did not demonstrate a reasonable excuse for defendant’s default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]). We note that defendant also failed to adequately explain its 11-month delay in seeking to vacate its default (see Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825 [2013]).

As the Civil Court did not determine the remaining branches of defendant’s motion seeking, in the alternative, to, among other things, modify the judgment, the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Accordingly, the order is reversed, the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the judgment entered October 31, 2014, and to compel plaintiff to accept defendant’s answer are denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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

Decided on December 20, 2018

Glinkenhouse, Floumanhaft & Queen (Alan Queen of counsel), for appellant-respondent. Peter C. Merani, P.C. (Eric M. Wahrburg and Edward Tobin of counsel), for respondent-appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 8, 2017. The order, insofar as appealed from by plaintiff, granted the branch of defendant’s motion seeking to toll the accrual of all postjudgment interest to the extent of tolling the interest from May 14, 2004 through February 8, 2008. The order, insofar as cross-appealed from by defendant, denied the branch of defendant’s motion seeking to direct the clerk to enter a satisfaction of judgment and granted the branch of its motion seeking to toll the accrual of all postjudgment interest only to the extent of tolling the accrual of interest from May 14, 2004 through February 8, 2008.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to toll the accrual of all postjudgment interest is denied and by vacating so much thereof as denied the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment in accordance with this decision and order.

Following a nonjury trial in 2000 of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded a judgment to plaintiff in the principal sum of $4,387, together with statutory interest, costs and fees. A judgment in the sum of $9,512.69 was entered on May 14, 2004 and was served with notice of entry upon defense counsel on June 8, 2008. Defendant acknowledged the receipt of a marshal’s notice of levy and sale on September 2, 2016. The notice advised defendant that defendant owed plaintiff the amount of the judgment, [*2]together with $376,324.80 in postjudgment interest. It is undisputed that, in October 2016, defendant issued a check to the marshal in the amount of $9,988.32. Several months later, defendant moved for, among other things, an order directing the clerk to enter a satisfaction of judgment; “modify[ing]” the judgment; and staying the accrual of postjudgment interest on the grounds that defendant had paid the “face value of the judgment” and that plaintiff is not entitled to postjudgment interest because plaintiff’s unreasonable delay had caused the interest to accrue. Plaintiff opposed the motion, arguing that interest accrues until a claim is paid. By order entered March 8, 2017, the Civil Court granted defendant’s motion to the extent of staying the accrual of interest from May 14, 2004, the date that the judgment was entered, through February 8, 2008, the date that plaintiff served a copy of the judgment with notice of entry. This appeal and cross appeal ensued.

A money judgment bears interest from the date of its entry (see CPLR 5003), and, generally, the interest accrues until the judgment is paid (see Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496 [2005]; Martin v Tafflock, 166 AD2d 635 [1990]). “Postjudgment interest is awarded as a penalty for the delayed payment of a judgment” (ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; see B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Contrary to defendant’s assertion, there is no evidence of actions or conduct by plaintiff which prevented defendant from paying the judgment (see Bankers Trust Co. of Cal., N.A. v Brunson, 40 AD3d 672, 672 [2007]; ERHAL Holding Corp., 252 AD2d at 474; cf. Danielowich v PBL Dev., 292 AD2d 414 [2002]). Consequently, the Civil Court erred in tolling the accrual of postjudgment interest for the period in question.

We remit the matter to the Civil Court for a new determination of the branch of defendant’s motion seeking to direct the entry of a satisfaction of judgment. The amount of a partial satisfaction, if any, should be calculated by determining the total payments received as of a certain date, and deducting from that sum the marshal’s fee, the interest accrued to that date, and the poundage fee due to the marshal upon the collection of such sum (see Ifudu v Ross, 60 Misc 3d 140[A], 2018 NY Slip Op 51199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In this regard, we note that plaintiff is entitled to receive only simple interest at the statutory rate of nine percent per year from the date of the entry of the judgment through the date of the payment of the judgment (see CPLR 5004; B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]), and that the marshal’s notice of levy and sale served upon defendant inexplicably stated interest in the amount of $376,324.80. We further note that defendant demonstrated, by showing the submission to a New York City marshal of a check which the marshal endorsed, that defendant had paid the amount of $9,988.32 (see CPLR 5021 [a]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to toll the accrual of all postjudgment interest is denied and by vacating so much thereof as denied the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment. The matter is remitted to the Civil Court for a new determination of the branch of defendant’s motion seeking an order directing the clerk to enter a satisfaction of judgment.

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