Goldberg Miller & Rubin, P.C. (Timothy Bishop of counsel), for appellant. Law Office of Marina Josovich, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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 moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff had failed to respond to defendant’s timely requests for additional verification.

Defendant’s cross motion was properly denied, as defendant failed to establish, prima facie, that its requests for additional verification were proper or timely, since defendant’s letters, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting such verification from the assignor (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), and that verification remains [*2]outstanding.

Plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claims at issue 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 plaintiff’s motion for summary judgment is denied.

ALIOTTA, P.J., and SIEGAL, J., concur.

WESTON, J., concurs in part and dissents in part, and votes to reverse the order, deny plaintiff’s motion for summary judgment, and grant defendant’s cross motion for summary judgment dismissing the complaint in the following memorandum:

While I agree with the majority that plaintiff’s motion should have been denied, I disagree with the majority’s conclusion that defendant’s cross motion was properly denied. Accordingly, I would reverse the order and grant summary judgment to defendant.

In this no-fault action, plaintiff Clear Water Psychological Services, P.C., as assignee of Nicole Mitchell, seeks payment for services rendered to Ms. Mitchell. Following receipt of plaintiff’s claims, defendant timely issued additional verification request letters seeking information to facilitate defendant’s ability to process the claims. The letters were sent to plaintiff and copied to Ms. Mitchell and her attorney. Plaintiff never responded to defendant’s letters.

After plaintiff moved for summary judgment, defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that the action was premature since plaintiff had failed to respond to its requests for verification. Defendant argued that the time to either pay the claim or issue a denial was tolled indefinitely and this action was premature (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]; see also Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007] [when a no-fault medical service provider fails to respond to the requests for verification, the 30 days in which to pay or deny the claim are tolled and do not begin to run]).

It is undisputed that defendant’s additional verification letters were mailed timely.

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter . . . insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must [*3]decide whether to pay or deny the claim is indefinitely tolled (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317; see also Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864-865 [2009])”

(Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2013]). Here, defendant’s initial and follow-up letters were all sent within the prescribed time frame.

Defendant’s letters were detailed, unambiguous, and exacting. They did more than merely advise of processing delays. The letters stated: “Be advised that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verifications under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (emphasis added). Plaintiff never supplied any information and failed to provide any explanation for the failure to comply.

These letters are more than mere processing delay letters. They were mailed to plaintiff, the insured, and the insured’s counselor, each specifically instructing the applicant to take action to prevent denial of the claim. Plaintiff took no action, even to state that the materials were not under its control or possession. While the majority may have a preference as to how the letters should be addressed, that preference does not equate to legal insufficiency. Indeed, plaintiff’s claim was supported by an assignment of benefit form executed by the insured. In accordance with this assignment, arguably plaintiff was in the position to request any additional documentation from the assignor to ensure its claims could be processed by defendant.

Accordingly, I would grant summary judgment to defendant.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, NY (Shaakee Bhuiyan of counsel), for appellant.

Baker & Cantin, P.C., Rego Park, NY (Elyse Ulino of counsel), for respondent.

In an action to recover first-party no-fault benefits for medical services rendered, the defendant appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 20, 2019. The order denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, a New Jersey medical provider, commenced this action to recover first-party no-fault benefits against the defendant, an insurance company, alleging it provided medical services to an individual (hereinafter the insured) who was injured in a motor vehicle accident and insured by the defendant. The plaintiff also alleged that the insured assigned first-party no fault benefits to it but that the defendant had failed to pay for the medical services provided by the plaintiff to the insured. The defendant moved, inter alia, for summary judgment dismissing the complaint, contending that the claimed expenses were not medically necessary and that the claim for one particular expense was not reimbursable under the applicable New Jersey medical fee schedule for Automobile Insurance Personal Injury Protection and Motor Bus Medical Expense Insurance Coverage (see NJ Admin Code § 11:3-29.5). The parties agree that because the medical services were provided in New Jersey, the New Jersey fee schedule applies. By order entered June 20, 2019, the Supreme Court denied the motion. The defendant appeals, and we affirm.

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d at 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

Here, the defendant made a prima facie showing that the services provided were not medically necessary and that the disputed surgical device was not reimburseable by submitting, inter alia, a peer review report, an independent medical examination report, and medical documentation (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722, 723 [2016]). In opposition, however, the plaintiff submitted an expert affidavit opining as to the medical necessity of the services based on, among other things, MRI results and findings made during the surgical procedure at issue. These submissions raised a triable issue of fact as to medical necessity (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d at 723; Excel Surgery Ctr., L.L.C. v Hertz Claim Mgt. Corp., 58 Misc 3d 145[A], 2017 NY Slip Op 51951[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). The plaintiff also raised a triable issue of fact as to whether the disputed device qualified for reimbursement under New Jersey Administrative Code § 11:3-29.4 (f) (8).

Accordingly, we agree with the Supreme Court’s determination denying the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.P., Chambers, Duffy and Barros, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Daniel J. Tucker (Matteo G. Sandusky of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 15, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to, in effect, hold the proceeding in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by deleting the provision thereof granting the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and the provision thereof denying plaintiff’s motion for summary judgment, and substituting, for the latter, a provision holding plaintiff’s motion in abeyance until it is ripe for determination; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination, following a framed issue hearing, of the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law, in accordance with this decision.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff asserted five causes of action based on five claims and moved for summary judgment thereon. Defendant cross-moved for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and directing that, in the event plaintiff fails to file proof with the court of such an application to the Workers’ Compensation Board within 90 days of the date of the court’s order, defendant would be granted summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been [*2]injured during the course of his employment. By order entered February 15, 2017, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]).

In light of the foregoing, the Civil Court properly granted the branches of defendant’s cross motion seeking, in effect, to hold the first through fourth causes of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law; however, instead of denying plaintiff’s motion for summary judgment, the court should have held that motion in abeyance until, if ever, it becomes ripe for determination. Moreover, with respect to the fifth cause of action, plaintiff correctly argues that there is a threshold issue to be decided—namely, whether defendant’s workers’ compensation defense is precluded as to that cause of action because defendant failed to timely deny the claim (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; Friedman v Allstate Ins. Co., 51 Misc 3d 129[A], 2016 NY Slip Op 50390[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). On the record before us, the date on which defendant received the claim underlying the fifth cause of action cannot be determined; consequently, this issue of fact must first be resolved following a framed issue hearing. If, after that hearing, the Civil Court finds that defendant timely denied the claim, the branch of defendant’s cross motion seeking to hold this cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law should be granted, for the reasons stated above. If the Civil Court finds that defendant did not timely deny the claim, the branch of defendant’s cross motion seeking to hold that cause of action in abeyance should be denied, as defendant’s defense based on the Workers’ Compensation Law would be precluded; whereupon, the branch of plaintiff’s motion seeking summary judgment on that cause of action will become ripe for resolution by the Civil Court.

Accordingly, the order is modified by deleting the provision thereof granting the branch [*3]of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and the provision thereof denying plaintiff’s motion for summary judgment, and substituting, for the latter, a provision holding plaintiff’s motion in abeyance until it is ripe for determination, and the matter is remitted to the Civil Court for a new determination, following a framed issue hearing, of the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

WESTON and ALIOTTA, JJ., concur.

PESCE, P.J., taking no part.

Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Gabriel & Shapiro, LLC, for respondent (no brief filed).

Appeal from a judgment of the District Court of Suffolk County, Third District (James F. Matthews, J.), entered August 16, 2017. The judgment, entered pursuant to an order of that court dated April 12, 2017 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,337.

ORDERED that the judgment is reversed, without costs, the order dated April 12, 2017 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In an order dated April 12, 2017, the District Court denied defendant’s motion, finding that the letters scheduling the EUOs of plaintiff were defective because they did not specify the claims to which the letters pertained, and the court granted plaintiff’s cross motion. A judgment awarding plaintiff the principal sum of $3,337 was entered on August 16, 2017 pursuant to the April 12, 2017 order.

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

“Contrary to the finding by the District Court, the EUO scheduling letters were not ‘defective.’ We note that the initial EUO scheduling letter identified the assignor, the date of the accident and defendant’s file number. The initial EUO scheduling letter resulted in [*2]a toll of defendant’s time to pay or deny plaintiff’s claims as to each claim form which had been submitted by the same plaintiff for the same assignor and accident prior to the EUO request, as long as the request had been timely with respect to such claim, and to any claim form received subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Tsatkis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact” (First Class Med., P.C. v Ameriprise Ins. Co., 63 Misc 3d 135[A], 2019 NY Slip Op 50477[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

Accordingly, the judgment is reversed, the order dated April 12, 2017 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered September 21, 2018. The judgment, entered pursuant to an order of that court entered August 13, 2018 granting plaintiff’s motion for the entry of a default judgment and denying defendant’s cross motion, for, in effect, summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,190.34.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated August 13, 2018 is deemed a premature notice of appeal from the judgment entered September 21, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. In support of plaintiff’s motion for a default judgment, its counsel stated that defendant’s time to answer had expired. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that plaintiff had failed to serve a summons and complaint within 120 days of the commencement of the action (see CCA 411). By order entered August 13, 2018, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered on September 21, 2018 awarding plaintiff the principal sum of $2,190.34. We deem [*2]defendant’s notice of appeal from the order to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

“Proof that a defendant was properly served with process is a prerequisite to the entry of a default judgment against that defendant (see CPLR 3215 [f]; Cordero v Barreiro-Cordero, 129 AD3d 899 [2015]). ‘Service of the summons [is] complete . . . in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])’ ” (Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U], *2[App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], quoting Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]). As a result, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport, Inc.,116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC,71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch,50 AD3d 963, 964 [2008]). Consequently, defendant’s cross motion should have been granted.

Accordingly, the judgment is reversed, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

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

Decided on June 12, 2020

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew Sarles 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 February 7, 2018. The order denied plaintiff’s motion to, in effect, vacate an order of that court entered February 27, 2017 granting, without written opposition by plaintiff, defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order entered February 7, 2018 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Republic Western Insurance Company (Republic) moved for, in effect, summary judgment dismissing the complaint on the ground that this action by plaintiff TAM Medical Supply Corp. (TAM) was barred under the doctrine of res judicata, by virtue of an order of the Supreme Court, New York County, which had granted a motion by Republic for a default judgment against TAM and its assignor, declaring that Republic is not obligated to pay for no-fault benefits on behalf of the assignor. TAM submitted papers in opposition to Republic’s motion, but they were not served timely in accordance with a briefing schedule stipulation which had been executed by attorneys for both parties. By order entered February 27, 2017, the Civil Court (Robin Kelly Sheares, J.) granted Republic’s motion, declining to consider TAM’s late opposition papers. Thereafter, TAM moved, in effect, to vacate the February 27, 2017 order, arguing that it had a reasonable excuse of law office failure for submitting untimely opposition to Republic’s motion and a meritorious claim of breach of contract. Republic opposed the motion. TAM appeals from an order of the Civil Court (Robin Kelly Sheares, J.), entered February 7, 2018, denying TAM’s motion.

The record before us indicates that TAM had moved, in effect, to vacate the February 27, 2017 order and, thus, was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to Republic’s motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the explanation of law office failure by TAM’s attorneys’ calendar clerk was insufficient to establish an excuse for submitting TAM’s opposition papers late. Consequently, it is unnecessary to determine whether TAM established a potentially meritorious opposition to Republic’s motion (see Rubinstein v Rubinstein, 128 AD3d 1047 [2015]). As TAM failed to demonstrate that the February 27, 2017 order should have been vacated, TAM’s motion was properly denied.

Accordingly, the order entered February 7, 2018 is affirmed.

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

Decision Date: June 12, 2020

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb and Selina Chin of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 31, 2018. The judgment, after a nonjury trial, awarded plaintiff the sum of $12,182.91.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

Pursuant to an order entered February 17, 2017 in this action by a provider to recover assigned first-party no-fault benefits, the only issue for trial was whether the supplies at issue were medically necessary. At the nonjury trial, plaintiff’s attorney moved to preclude defendant’s expert witness on the ground that disclosure of the witness was untimely. The Civil Court granted plaintiff’s application to preclude the witness and, since defendant did not have any other witnesses, found for plaintiff. A judgment awarding plaintiff the sum of $12,182.91 was entered on May 31, 2018.

“CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999] [internal quotation marks omitted]). Plaintiff attempted to demonstrate prejudice before the Civil Court. However, since defendant’s witness was the doctor who had prepared the peer review reports upon which the denials of the claims were based, his name was listed as such in each of the denial of claim forms, and his report was attached to defendant’s motion for summary judgment, it is clear that plaintiff was not prejudiced (see id.). Thus, the Civil Court erred in precluding defendant’s expert from testifying (see Burbige v Siben & Ferber, 115 AD3d 632 [2014]; Market St. Surgical Ctr. v Global [*2]Liberty Ins. Co.,61 Misc 3d 155[A], 2018 NY Slip Op 51822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

In view of the foregoing, this court need not reach defendant’s other argument.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg and Argyria A.N. Keltagias 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 June 29, 2018. The order granted defendant’s motion (1) to vacate an order of that court (Michael Gerstein, J.) entered November 29, 2017 granting plaintiff’s unopposed motion for the entry of a judgment based on defendant’s alleged failure to answer the complaint, (2) to, in effect, vacate the judgment entered March 1, 2018 pursuant to the November 29, 2017 order, and (3) upon such vacatur, to grant defendant summary judgment dismissing the complaint.

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

Plaintiff commenced this action on June 22, 2017 to recover assigned first-party no-fault benefits for services provided to Ludmilla Dejean, who was injured in a motor vehicle accident on or about June 7, 2011. The record contains an answer by defendant 21st Century Insurance Company (21st Century), along with an affidavit signed on July 21, 2017, attesting to service of the answer upon plaintiff’s attorneys by mail on July 21, 2017. On November 20, 2017, plaintiff served a motion seeking the entry of a default judgment on the ground that plaintiff had not received an answer from defendant. By order entered November 29, 2017, the return date of plaintiff’s motion, the Civil Court (Michael Gerstein, J.) granted the motion, finding, among other things, that defendant had “failed to appear for and answer the calendar call on the return date of the motion [and] to submit any opposition.” A default judgment was entered on March 1, 2018, pursuant to the November 29, 2017 order, awarding plaintiff the principal sum of $527.54.

In April 2018, defendant moved to vacate the November 29, 2017 order and, in effect, the [*2]judgment entered pursuant thereto and, upon such vacatur, for summary judgment dismissing the complaint on the ground that plaintiff’s action is precluded by an order of the Supreme Court, New York County, dated June 3, 2014, granting a motion by 21st Century for a default judgment against Freedom Chiropractic, P.C. and its assignor, Ludmilla Dejean, declaring, insofar as is relevant to the case at bar, that 21st Century is not obligated to reimburse Freedom Chiropractic, P.C. and its assignor for claims arising out of the June 7, 2011 accident, and that the applicable insurance policy is null and void with respect to that accident. Defendant also presented a judgment that was entered on July 21, 2017 in the Supreme Court, New York County, making the same declarations as were made in the June 3, 2014 order as to the parties’ rights. Plaintiff opposed defendant’s motion in the Civil Court. By order entered June 29, 2018, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion and awarded defendant summary judgment dismissing the complaint.

As plaintiff acknowledges on appeal, defendant argued that defendant “did not receive at least 13 days’ notice [of plaintiff’s motion for leave to enter a default judgment], the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the court of jurisdiction to entertain the motion” (Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente, 86 AD3d 532, 532-533 [2011]; Bianco v LiGreci, 298 AD2d 482, 482 [2002]). As the Civil Court was deprived of jurisdiction, the November 29, 2017 order and the March 1, 2018 judgment entered pursuant thereto were nullities (see Financial Servs. Veh. Trust, 86 AD3d at 533).

In any event, defendant has demonstrated an excusable default and a meritorious defense to the action. By virtue of the Supreme Court’s declaratory judgment, there has been a conclusive determination of the merits of the claim in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). In view of the foregoing, the Civil Court properly granted defendant’s motion, and we do not reach the parties’ remaining arguments.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg and Argyria A.N. Kettagias of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 11, 2018. The order denied plaintiff’s motion for summary judgment and granted 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 Wave Medical Services, P.C. (Wave) moved for summary judgment and defendant Farmers New Century Insurance Co. (Farmers) cross-moved for summary judgment dismissing the complaint. In support of its cross motion, Farmers submitted an order that had been entered in a Supreme Court declaratory judgment action which granted a motion brought by, among others, Farmers seeking a default judgment against, among others, Wave. The order found specifically that the plaintiffs therein, including Farmers, were entitled to a default judgment on liability against Wave, but did not declare the rights of the parties. The Civil Court denied Wave’s motion for summary judgment and granted Farmers’ cross motion for summary judgment dismissing the complaint based upon the Supreme Court order. In response to Wave’s appeal, Farmers submits a judgment that was entered in the Supreme Court which declared, among other things, that Farmers has no duty to pay any no-fault [*2]benefits to Wave in any current or future proceeding because Wave is ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12).

A court “may in general take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). In light of the Supreme Court’s declaration that Farmers has no obligation to pay no-fault benefits to Wave in any current proceeding, set forth in the Supreme Court judgment of which we take judicial notice, we find that the Civil Court properly denied Wave’s motion for summary judgment and granted Farmers’ cross motion for summary judgment dismissing the complaint (see Healing Art Acupuncture, P.C. v 21st Century Ins. Co.,59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order is affirmed.

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

Paul Kenny