Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A. (Ari Reiser 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 12, 2023. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a judgment entered on September 12, 2019 upon defendant’s failure to appear or answer the complaint and extended defendant’s time to serve its 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 medical supplies furnished to its assignor for injuries he sustained in a motor vehicle accident which occurred on May 9, 2018. Plaintiff served the summons and complaint on the New York State Department of Financial Services (DFS) on April 18, 2019, pursuant to Insurance Law § 1212, and filed its affidavit of service on May 3, 2019. Defendant received the summons and complaint from the DFS on June 3, 2019 via regular mail. It is undisputed that defendant’s claims representative contacted plaintiff’s counsel’s office between June 12, 2019 and June 14, 2019, and defendant’s counsel contacted plaintiff’s counsel between June 27, 2019 and August 12, 2019, stating that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident and requesting that the lawsuit be voluntarily discontinued on the ground that the injuries were covered by workers’ compensation insurance. In an email sent on June 28, 2019, plaintiff’s counsel stated that she needed proof of these assertions, which defendant’s counsel provided via email on July 10, 2019. Defense counsel served an answer on [*2]July 1, 2019 and filed it on July 2, 2019. A default judgment was entered against defendant on September 12, 2019.

By notice of motion dated January 30, 2020, defendant moved to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint. Insofar as is relevant on appeal, defendant argued that the default judgment should be vacated, pursuant to CPLR 5015, as a timely answer had been served, and, in any event, 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 affidavits of its employees who averred that the summons and complaint was not received until June 3, 2019 and so the answer was timely. Any alleged delay in answering was due to the attempts of defendant’s employee and defendant’s counsel to obtain a voluntary discontinuance of the action. Defendant also submitted an affidavit by plaintiff’s assignor’s employment supervisor, in which the supervisor asserted that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which the assignor was injured. In opposition, plaintiff argued that defendant had not filed a timely answer and had otherwise failed to proffer a reasonable excuse for its delay in answering, and noted that plaintiff’s assignor, in his no-fault benefits application, had denied that the accident occurred within the scope of his employment. By order dated July 12, 2023, the Civil Court (Heela D. Capell, J.) granted the branch of defendant’s motion seeking to vacate the default judgment, finding that defendant had proffered a reasonable excuse for its delay in answering as well as a potentially meritorious defense, extended defendant’s time to serve its answer, and implicitly denied the branch of defendant’s motion seeking summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking to vacate the default judgment and extended defendant’s time to serve an answer.

Defendant established its entitlement to vacate the default judgment under CPLR 317. Although defendant specifically moved pursuant to CPLR 5015, under the circumstances presented, its motion to vacate the default judgment was also governed by CPLR 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Kircher v William Penn Life Ins. Co. of NY, 165 AD3d 1241 [2018]). A defaulting defendant who was “served with a summons other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108 [2017]). “There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay” (Kircher, 165 AD3d at 1243; Booso, 148 AD3d at 1108). Here, defendant established that it did not receive actual notice of the action until it received the summons and complaint from the DFS on June 3, 2019, and, thus, it did not have enough time to defend within the 30-day period set forth in CCA 402 (b).

Defendant also demonstrated the existence of a potentially meritorious defense to the action, as the affidavits of defendant’s employee and plaintiff’s assignor’s employment supervisor stated that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which he was injured, which would entitle him to workers’ compensation benefits (see Mani Med., P.C. v American Tr. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51185[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s [*3]motion seeking to vacate the default judgment.

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

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), dated December 28, 2023. The order denied defendant’s 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, defendant appeals from an order of the Civil Court (Karen Lin, J.) denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the policy limits had been exhausted.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that the policy limits were exhausted before completed claims from plaintiff were received (see Alleviation Med. Servs., P.C., 55 Misc 3d 44, affd 191 AD3d 934; S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint. We reach no other [*2]issue.

Accordingly, the order is affirmed.

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

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Katryna L. Kristoferson of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. 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 from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 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).

Contrary to plaintiff’s sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v GEICO,76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent plaintiff contends that an issue existed with respect to counsel’s recollection of plaintiff’s failure to appear, such a contention is without [*2]merit, as, on its face, counsel’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).

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

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

OTTLEY, J., taking no part.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. McCormack, Mattei & Holler, P.C. (Jamila Shukry of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, Jr., J.), dated May 16, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, Jr., J.) dated May 16, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had materially misrepresented where the vehicle was garaged. As this defense is subject to preclusion (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), defendant was required to establish that it had timely denied the claims on that ground, but it failed to do so (see JFL Med. Care, P.C., 2022 NY Slip Op 51376[U]; Empire State Med. Supplies, Inc., 2017 NY Slip Op 50403[U]; Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is denied.

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

OTTLEY, J., taking no part.

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