Decided on March 3, 2023

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

The Rybak Firm, PLLC (Damin J. Toell 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 (Robin Kelly Sheares, J.), entered June 13, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary 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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

For the reasons stated in MSB Physical Therapy, P.C. v Nationwide Ins. (75 Misc 3d 136[A], 2022 NY Slip Op 50564[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]), the order is affirmed.

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

VENTURA, J., taking no part.

Decided on February 24, 2023

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

The Law Office of Kevin J. Philbin (Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered September 15, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received all of the requested verification. In opposition, plaintiff’s owner merely stated that he had mailed the requested verification “to the extent such response was proper and in [his] possession.” Thus, contrary to plaintiff’s contentions on appeal, [*2]plaintiff failed to establish a triable issue of fact by demonstrating that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests (see 11 NYCRR 65-3.8 [b] [3]). Consequently, we find no basis to disturb the order (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.

Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 15, 2019. The order granted defendant’s motion to vacate a judgment entered January 26, 2019 pursuant to a default under a stipulation of settlement.

ORDERED that the order is reversed, with $30 costs, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement which provided that defendant would pay plaintiff the total sum of $2,523.02. Plaintiff accepted from defendant three checks dated 45 days after the stipulation of settlement. Thereafter, plaintiff applied for a default judgment, alleging that defendant had failed to timely make the payment. Plaintiff provided a signed copy of the purported stipulation of settlement which set forth that defendant was to make the payment within 21 days. A judgment was entered against defendant. Defendant moved to vacate the judgment, asserting that its payment was timely. Defendant provided a signed copy of the purported stipulation of settlement which contained a handwritten notation setting forth that [*2]defendant was to make the payment within 45 days. After oral argument, but without holding a hearing, the Civil Court granted defendant’s motion.

In light of the apparent factual dispute regarding the terms of the stipulation of settlement and defendant’s compliance with them, it was error for the Civil Court to grant defendant’s motion without holding a hearing to determine the disputed issues of fact (see Midland Funding, LLC v Dort, 39 Misc 3d 151[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also U.S. Equities Corp. v Ridwan, 71 Misc 3d 138[A], 2021 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

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

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant.

Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), dated March 27, 2020. The order denied, as moot, plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 23, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 23, 2017 is granted.

Plaintiff commenced this action in 2000 to recover first-party no-fault benefits for supplies it furnished to its assignor as a result of a motor vehicle accident that occurred on June 11, 1998. Defendant appeared and answered. On June 27, 2001, the State of New York dissolved plaintiff by proclamation. On or about July 15, 2003, the parties entered into a settlement agreement. It is uncontroverted that defendant did not pay the amount set forth in the settlement. On March 23, 2017, plaintiff had a judgment entered, ex parte, in the total sum of $4,781.27, including $2,972.06 in interest. In December of 2018, plaintiff moved to recalculate, from a simple rate to a compound rate, the award of statutory no-fault interest in the March 23, [*2]2017 judgment pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Defendant opposed the motion and the motion was marked fully submitted on October 21, 2019.

In November of 2019, defendant moved to, in effect, vacate the March 23, 2017 judgment and, upon such vacatur, to “dismiss[ ] the complaint on the ground that plaintiff lacks standing to maintain this action and collect on the judgment . . . since the Secretary of State dissolved plaintiff and annulled its authority on June 27, 2001, and plaintiff has failed to wind up its affairs within a reasonable time as a matter of law” or, in the alternative, “upon the ground that plaintiff failed to comply with CPLR 5003-a.” By order entered March 26, 2020, the Civil Court granted defendant’s motion, vacated the judgment and, upon such vacatur, dismissed the complaint.

On appeal, this court, by order dated April 1, 2022, reversed the March 26, 2020 order, denied defendant’s motion to vacate the judgment and stated that the matter was being remitted to the Civil Court to determine plaintiff’s pending December 2018 motion (Medtech Med. Supply, Inc. v Country-Wide Ins. Co., 74 Misc 3d 137[A], 2022 NY Slip Op 50304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). At that time, this court was unaware of the fact that the Civil Court, by order dated March 27, 2020, had denied, as moot, plaintiff’s pending motion to recalculate the interest awarded in the March 23, 2017 judgment. Plaintiff now appeals from the March 27, 2020 order.

As this court has reversed the March 26, 2020 order granting defendant’s motion to vacate the March 23, 2017 judgment, and that judgment has been reinstated, plaintiff’s motion is no longer moot.

Rather than remitting the matter to the Civil Court for a determination of the merits of plaintiff’s motion to recalculate the interest awarded in the March 23, 2017 judgment, in the interest of judicial economy, we address the merits and find that the claim is governed by the former regulations providing for compound interest (see Biotech Surgical Supply v Country Wide Ins. Co., 75 Misc 3d 128[A], 2022 NY Slip Op 50376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; G.N.S. Med. Supplies, Inc. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52035[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]) and that defendant’s argument that plaintiff’s motion should be denied because of a delay in entering the judgment after the settlement is without merit (see Biotech Surgical Supply, 2022 NY Slip Op 50376[U]; Seaside Rehabilitation, 2019 NY Slip Op 50918[U]).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, the award of statutory no-fault interest in the judgment entered March 23, 2017 is granted.

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

The Rybak Firm, PLLC (Damin J. Toell 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 (Jill R. Epstein, J.), dated September 2, 2020. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing causes of action (1), (2), (3), (4) and (6), and denied the branches of plaintiff’s cross motion seeking summary judgment on those five causes of action.

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

In October of 2017, plaintiff Ahmed Medical Care, P.C. (Ahmed) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover $892.14 in assigned first-party no-fault benefits for services Ahmed rendered to its assignor, Sigmund October, for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. The services were rendered on six dates between June 23, 2015 and November 18, 2015.

State Farm moved for summary judgment dismissing causes of action (1), (2), (3), (4) and (6) on the ground that they were barred by the doctrine of res judicata and/or collateral estoppel by virtue of a declaratory judgment issued by the Supreme Court, Nassau County, in a [*2]declaratory judgment action commenced by State Farm against Ahmed. In a support of the motion, State Farm’s counsel stated that, following Ahmed’s default in appearing in the Supreme Court action, a judgment was entered on April 1, 2016 (Antonio I. Brandveen, J.) which declared that Ahmed had no right to receive payment from State Farm for any claims set forth in the chart attached to the Supreme Court complaint because the assignor had failed to appear for examinations under oath. State Farm attached to its Civil Court motion a copy of the chart containing the precluded claims. State Farm’s counsel further stated that Ahmed’s motion to vacate its default in appearing in the Supreme Court action was denied in an order entered September 2, 2016. Ahmed cross-moved in the Civil Court for summary judgment on all six causes of action. Ahmed’s counsel argued, as is relevant here, that the declaratory judgment action has no preclusive effect on this action since it was granted on default.

In an order dated September 2, 2020, the Civil Court granted State Farm’s motion for summary judgment dismissing causes of action (1), (2), (3), (4) and (6), and granted Ahmed’s cross motion for summary judgment only with respect to the fifth cause of action. Ahmed appeals.

Initially, Ahmed’s contention that the copy of the chart of the claims barred by the declaratory judgment attached to State Farm’s motion was illegible and should not have been considered is without merit (see Bronx Med. Diagnostic, P.C. v Hereford Ins. Co., 65 Misc 3d 146[A], 2019 NY Slip Op 51793[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

“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, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). ” ‘A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised . . . in the prior action’ ” (Tracey v Deutsche Bank Natl. Trust, 187 AD3d 815, 817 [2020], quoting Eaddy v US Bank N.A.,180 AD3d 756, 758 [2020]; see North Val. Med., P.C. v Permanent Gen. Assur. Corp., 74 Misc 3d 127[A], 2022 NY Slip Op 50048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

As defendant’s moving papers sufficiently established that the assignor, claims, date of loss and dates of service relevant to causes of action (1), (2), (3), (4) and (6) in the case at bar are the same as those referenced in the Supreme Court declaratory judgment which rendered a final adjudication of those claims on the merits (see Ciraldo, 140 AD3d at 913), causes of action (1), (2), (3), (4) and (6) in the instant Civil Court action were barred under the doctrine of res judicata. Consequently, the Civil Court properly granted State Farm’s motion for summary judgment dismissing those causes of action (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud [*3]Dists 2012]), since any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

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

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

The Rybak Firm, PLLC (Damin J. Toell 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 (Jill R. Epstein, J.), dated September 2, 2020. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and denied the branches of plaintiff’s cross motion seeking summary judgment on those four causes of action.

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

In October of 2017, plaintiff Ahmed Medical Care, P.C. (Ahmed) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover $892.14 in assigned first-party no-fault benefits for services Ahmed rendered to its assignor, Celeste October, for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. The services were rendered on six dates between June 23, 2015 and November 18, 2015.

State Farm moved for summary judgment dismissing causes of action (1), (2), (4) and (6) on the ground that they were barred by the doctrine of res judicata and/or collateral estoppel by virtue of the declaratory judgment issued by the Supreme Court, Nassau County, in a declaratory judgment action commenced by State Farm against Ahmed. In support of the motion, State [*2]Farm’s counsel stated that, following Ahmed’s default in appearing in the Supreme Court action, a judgment was entered on April 1, 2016 (Antonio I. Brandveen, J.) which declared that Ahmed had no right to receive payment from State Farm for any claims set forth in the chart attached to the Supreme Court complaint because the assignor had failed to appear for examinations under oath. State Farm attached to its Civil Court motion a copy of the chart containing the precluded claims. State Farm’s counsel further stated that Ahmed’s motion to vacate its default in appearing in the Supreme Court action was denied in an order entered September 2, 2016. Ahmed cross-moved in the Civil Court for summary judgment on all six causes of action. Ahmed’s counsel argued, as is relevant here, that the declaratory judgment action has no preclusive effect on this action since it was granted on default.

In an order dated September 2, 2020, the Civil Court granted State Farm’s motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and granted Ahmed’s cross motion for summary judgment only with respect to causes of action (3) and (5). Ahmed appeals.

For the reasons stated in Ahmed Med. Care, P.C., as assignee of October, Sigmund v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2023 NY Slip Op — [appeal No. 2021-659 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on January 6, 2023

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

Law Offices of Rothenberg & Burns (Bianca Mayard Francois of counsel), for appellant. Law Office of Damin J. Toell, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated June 28, 2021. The order, insofar as appealed from, denied defendant’s motion for, in effect, 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, defendant appeals, as limited by its notice of appeal, from so much of an order of the Civil Court as denied defendant’s motion for, in effect, summary judgment dismissing the complaint on the ground that the action is barred by the statute of limitations.

For the reasons stated in New Millennium Med. Imaging, P.C. v GEICO (76 Misc 3d 31 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]), the order, insofar as appealed from, is affirmed.

TOUSSAINT and BUGGS, JJ., concur.

WESTON, J.P., taking no part.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Office of Gabriel & Moroff, LLC (Matthew Sledzinski and Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 12, 2021. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 failed to appear for duly scheduled examinations under oath (EUOs). In an order dated July 12, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The District Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to [*2]appear, and that the insurer issued timely denials of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the District Court found to have been established (see CPLR 3212 [g]).

Plaintiff does not argue that defendant did not demonstrate its prima facie entitlement to summary judgment. Rather, plaintiff argues that defendant did not have an objective basis for requesting the EUOs. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant’s motion should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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 (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting 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), and denying plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is [*2]not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint should have been denied.

However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its 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 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 defendant’s motion for summary judgment dismissing the complaint is denied.

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