Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered October 7, 2019. The order denied as untimely defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on June 14, 2018. On October 12, 2018, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant’s motion was untimely. By order entered October 7, 2019, the Civil Court denied defendant’s motion on the ground that it was untimely.

Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 17, 2021

APPEARANCES OF COUNSEL

Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel) for appellant.

Goldman Law Offices (Anna Goldman of counsel) for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of the branches of defendant’s motion seeking to, in effect, vacate the order entered April 20, 2017, granting plaintiff’s motion to enter a default judgment and, upon such vacatur, to dismiss the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant did not appear or answer the complaint. By order entered April 20, 2017, the Civil Court (Susan Quirk, J.) granted, on default, plaintiff’s motion to enter a default judgment. In September 2017, defendant moved to, among other things, in effect, vacate the April 20, 2017 order, alleging that it had not received plaintiff’s motion, and, upon such vacatur, to dismiss the complaint for lack of personal jurisdiction. Plaintiff opposed the motion. As limited by its brief, defendant appeals from so much of an order entered July 12, 2019, as denied the foregoing branches of defendant’s motion.

“It is axiomatic that the failure to serve process in an action leaves the court without [*2]personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013] [internal quotation marks omitted]). Lack of personal jurisdiction, and thus the question of whether there ever was a default, is a “threshold issue” (McSpedon v Levine, 158 AD3d 618, 620 [2018]). Here, defendant submitted a detailed affidavit by the claims clerk alleged to have received service of process, which affidavit was sufficient to rebut the{**74 Misc 3d at 43} process server’s affidavit and raise an issue of fact necessitating a traverse hearing (see Cautious Care Med., P.C. v 21st Century Ins. Co., 72 Misc 3d 140[A], 2021 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

We note that, while CPLR 3215 (c) requires a plaintiff which seeks to enter a default judgment more than one year after the default to show sufficient cause why the complaint should not be dismissed, on the record before us, there is no basis to find that plaintiff herein failed to make such a showing. Plaintiff’s motion papers are not included in the record and defendant did not raise this argument in the Civil Court.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of the branches of defendant’s motion seeking to, in effect, vacate the order entered April 20, 2017, granting plaintiff’s motion to enter a default judgment and, upon such vacatur, to dismiss the complaint.

Weston, J. (concurring in part and dissenting in part, and voting to reverse the order, insofar as appealed from, and grant the branches of defendant’s motion seeking to vacate the order entered April 20, 2017, and to dismiss the complaint as abandoned). On or about December 10, 2010, plaintiff, a provider, commenced this action seeking to recover assigned first-party no-fault benefits. Seven years later, plaintiff moved for the entry of a default judgment, which motion was granted. Plaintiff alleged that defendant was served on or about December 16, 2010, by leaving a copy of the summons and complaint with an authorized agent for the corporation. The April 20, 2017 order granting the entry of a default judgment makes no mention that any excuse for the delay was offered or that good cause was shown.

In September 2017, defendant moved to vacate the April 20, 2017 order on the grounds that defendant was not personally served. An affidavit from the person allegedly served denying service was attached to the papers. Further, pursuant to CPLR 5015 (a) (1), defendant asserted that the lack of service provided a reasonable excuse for the default and submitted a meritorious defense to the action.

It is well settled that “[w]hen a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned” (Solano v Castro, 72 AD3d 932, 932-933 [2d Dept 2010]; see CPLR 3215 [c]; Perricone v City of New York, 62 NY2d 661, 663 [1984];{**74 Misc 3d at 44} Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2d Dept 2008]; Mattera v Capric, 54 AD3d 827 [2d Dept 2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2d Dept 2005]; Monzon v Sony Motor, 115 AD2d 714 [2d Dept 1985]). The procedure for obtaining a default judgment is plainly set forth in CPLR 3215 (c). CPLR 3215 (c) provides

“[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the [*3]complaint should not be dismissed” (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 750 [2d Dept 2014]; see also Baruch v Nassau County, 134 AD3d 658, 659 [2d Dept 2015]).

“The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215 [c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2d Dept 2011]; see Bank of N.Y. v Kushnir, 150 AD3d 946 [2d Dept 2017]; Butindaro v Grinberg, 57 AD3d 932 [2d Dept 2008]; County of Nassau v Chmela, 45 AD3d 722 [2d Dept 2007]). It is not necessary that a motion to dismiss be made, since the statute provides the court with the authority not to enter judgment on an abandoned complaint. The court on its own initiative should dismiss the complaint in the absence of compliance with the statute (see U.S. Bank, N.A. v Laulicht, 176 AD3d 892, 893 [2d Dept 2019]; Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963 [2d Dept 2018]).

Here, it is undisputed that plaintiff failed to seek entry of a judgment within one year of the alleged default. There is no explanation for this failure in the record. The court below should not have entered judgment in favor of plaintiff, but rather should have dismissed the complaint as abandoned. Inasmuch as defendant now seeks to vacate the order granting entry of a default judgment, the mandatory language of CPLR 3215 (c) requires the dismissal of the complaint.

Moreover, the authority for this court to dismiss the complaint is plain. Pursuant to CPLR 3215 (c), the court upon its own initiative can dismiss an action which has been deemed abandoned. In Perricone v City of New York (62 NY2d at 663), the Court noted:{**74 Misc 3d at 45}

“Having failed to comply with the statutory requirements, plaintiff’s complaint was dismissed by the Appellate Division and we find no legal error in that decision. (See Chin v Hooker, 95 AD2d 790; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660.)

“Plaintiff’s argument that the city waived its right to move for dismissal of the complaint is unpersuasive inasmuch as the Appellate Division exercised its authority under CPLR 3215 (subd [c]) and dismissed the complaint on its own initiative. Nor can plaintiff be heard to complain that he had no notice that the Appellate Division intended to act pursuant to the statute and, therefore, had no opportunity to demonstrate sufficient cause why the complaint should not be dismissed. Plaintiff was aware for more than ten years that the city had not answered, yet failed to move for a default judgment.”

Under the circumstances presented here, the seven-year delay in proceeding to enter judgment after the default should not be excused. The motion for the entry of a default judgment should have been denied (see Shinn v City of New York, 65 AD3d 621, 622-623 [2d Dept 2009]; Butindaro v Grinberg, 57 AD3d at 933; Staples v Jeff Hunt Devs., Inc., 56 AD3d at 460; Mattera v Capric, 54 AD3d at 828). A traverse hearing would not resolve the underlying delay by plaintiff in seeking a default judgment and the consequences of CPLR 3215 (c) thereto. Accordingly, defendant’s motion to vacate the April 20, 2017 order should be granted and the complaint dismissed.

Toussaint, J.P., and Elliot, J., concur; Weston, J., concurs in part and dissents in part in a separate memorandum.

Decided on December 10, 2021

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

Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Bryan Cave, LLP (Matthew A. Sarles and Adam S. Bird-Ridnell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 23, 2019. The order, upon, in effect, renewal, adhered to the determination in a prior order of that court entered May 24, 2018 denying plaintiff’s motion for summary judgment and granting defendant’s cross 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, 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 24, 2018, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion. Plaintiff moved for leave to renew its motion for summary judgment and its opposition to defendant’s cross motion and, upon renewal, for an order granting plaintiff’s motion and denying defendant’s cross motion. Plaintiff supported its motion with an affidavit from its assignor, who simply stated that he had not received the IME scheduling letters. Defendant opposed the motion. Plaintiff appeals from an order of the Civil Court entered July 23, 2019, which, upon renewal, adhered to its prior determination denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s sole contention on appeal, the affidavit by plaintiff’s assignor failed to raise a triable issue of fact because plaintiff did not submit any evidence that the IME [*2]scheduling letters were not properly mailed. Plaintiff’s assignor’s bald conclusory denial of receipt was insufficient to rebut a presumption that the letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

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

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

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, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant [*2]then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

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

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

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, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the [*2]Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

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

Decided on December 10, 2021

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

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 28, 2019. The order denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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 defendant had not issued an insurance policy covering the accident in question. The Civil Court denied defendant’s cross motion without addressing plaintiff’s motion for summary judgment.

In support of its cross motion, defendant submitted an affidavit from its underwriting department’s New Business Supervisor which was sufficient to demonstrate that defendant had not issued a policy covering the subject loss (see Pavlova v Country Wide Ins. Co., 59 Misc 3d 151[A], 2018 NY Slip Op 50843[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In opposition to defendant’s prima facie showing that there was no coverage in effect at the time of the accident, plaintiff failed to demonstrate the existence of a triable issue of fact. As a result, defendant’s cross motion for summary judgment should have been granted and, consequently, there is no need to remit the matter to the Civil Court for further proceedings upon plaintiff’s motion for summary judgment (see New Millennium Med. Imaging, P.C. v Charter Oak Fire Ins. Co., 64 Misc 3d 137[A], 2019 NY Slip Op 51163[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova, 2018 NY Slip Op 50843[U]; New Way Med. Supply Corp. v Dollar Rent A [*2]Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on December 10, 2021

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order denied a motion by defendant American Independent Ins. Co. which sought to dismiss the complaint insofar as asserted against it.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant American Independent Ins. Co. (AIIC) which had sought to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved, among other things, for “an order pursuant to . . . CPLR 3212 (a) denying [AIIC’s] Motion for Summary Judgment.” By order entered September 18, 2018, the Civil Court denied AIIC’s motion and plaintiff’s cross motion. Defendant Omni Indemnity Company appeals from each and every part of the order.

Defendant Omni Indemnity Company is not aggrieved by so much of the order as denied the motion by AIIC which sought to dismiss the complaint insofar as asserted against it (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]). Nor is defendant Omni Indemnity Company aggrieved by so much of the order as denied the cross motion by plaintiff and held that a triable issue of fact existed as to whether AIIC did business in the State of New York (see CPLR 5511).

Accordingly, the appeal is dismissed.

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

Decided on December 10, 2021

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order denied a motion by defendant American Independent Ins. Co. which sought to dismiss the complaint insofar as asserted against it.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant American Independent Ins. Co., Inc. (AIIC) which had sought to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved, among other things, for “an order pursuant to . . . CPLR 3212 (a) denying [AIIC’s] Motion for Summary Judgment.” By order entered September 18, 2018, the Civil Court denied AIIC’s motion and plaintiff’s cross motion. Defendant Omni Indemnity Company appeals from each and every part of the order.

Defendant Omni Indemnity Company is not aggrieved by so much of the order as denied the motion by AIIC which sought to dismiss the complaint insofar as asserted against it (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]). Nor is defendant Omni Indemnity Company aggrieved by so much of the order as denied the cross motion by plaintiff and held that a triable issue of fact existed as to whether AIIC did business in the State of New York (see CPLR 5511).

Accordingly, the appeal is dismissed.

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