[*1]

Kopelevich & Feldsherova, P.C., Brooklyn, NY (David Landfair of counsel), for appellants.

Hollander Legal Group, P.C. (Allan S. Hollander and Harris J. Zakarin, P.C., Melville, NY, of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered July 11, 2017. The order granted the plaintiff’s motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.

The defendants Andy Williams, Amanda Nixon, and Shaquille Swan (hereinafter collectively the individual defendants) allegedly were injured in a motor vehicle accident and assigned their rights to recover for no-fault benefits under the vehicle owner’s insurance policy to the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C. (hereinafter collectively the medical provider defendants). The plaintiff commenced this action for a judgment declaring that it is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants on the ground that the individual defendants failed to appear for two scheduled examinations under oath (hereinafter EUOs). The plaintiff moved for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. The medical provider defendants opposed the motion. In an order entered July 11, 2017, the Supreme Court granted the plaintiff’s motion. The medical provider defendants appeal.

“ ’The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds’ ” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014], quoting Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488 [1992]). An insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims (see IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]; Interboro Ins. Co. v Clennon, 113 AD3d at 597).

Here, the plaintiff established, prima facie, that the letters scheduling the EUOs were timely and properly mailed by submitting an affidavit from an individual who had personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed (see Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2016]). In opposition, the medical provider defendants failed to raise a triable issue of fact because they did not submit any evidence that the letters were not properly mailed. The medical provider defendants’ mere denial of receipt was insufficient to rebut a presumption that the letters were received (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]).

The plaintiff also established, prima facie, that the individual defendants failed to appear at two scheduled EUOs by submitting the affidavits of individuals with personal knowledge that the individual defendants failed to appear at the location of the EUOs on the dates they were scheduled (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, the medical provider defendants failed to raise a triable issue of fact. They did not submit evidence to establish that the first EUO was mutually rescheduled (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Additionally, the plaintiff established, prima facie, that it issued a timely and proper denial of the claims by demonstrating that the denials were sent within 30 days of the second scheduled EUO, through affidavits from individuals who had personal knowledge as to the standard office practice for ensuring that denials are properly addressed and mailed (see 11 NYCRR 65-3.5 [b]; 65-3.8 [a] [1]; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d at 694). The affidavits submitted by the medical provider defendants in opposition failed to raise a triable issue of fact because they did not directly contradict the affidavits submitted by the plaintiff with regard to its standard office practices for addressing and mailing denial letters.

Furthermore, the medical provider defendants’ contention that the plaintiff’s motion for summary judgment should have been denied because the plaintiff failed to either pay or deny four of the medical provider defendants’ bills is without merit because the bills were sent more than 45 days after service was rendered (see 11 NYCRR 65-1.1 [d]).

Accordingly, we agree with the Supreme Court’s determination to grant the plaintiff’s motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants (see Lanza v Wagner, 11 NY2d 317, 334 [1962]). Chambers, J.P., Roman, Cohen and Christopher, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 2, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that so much of the appeal as is from the portion of the order that denied defendant’s motion for summary judgment dismissing the complaint is dismissed as academic in light of this court’s determination of the remainder of the appeal; and it is further,

ORDERED that the order, insofar as reviewed, is reversed, with $30 costs, plaintiff’s cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor, who had purportedly been injured in a motor vehicle accident on March 9, 2015. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled examinations under oath and independent [*2]medical examinations, and plaintiff cross-moved for summary judgment. By order entered March 2, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Defendant correctly argues that plaintiff’s cross motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claim 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 a timely denial of claim form that was 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]). Thus, the portion of the order which granted plaintiff’s cross motion for summary judgment must be reversed and plaintiff’s cross motion denied.

Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, on appeal, defendant argues that the complaint should be dismissed based upon a Supreme Court, Bronx County, declaratory judgment action against plaintiff and plaintiff’s assignor, among others, seeking a declaration that the defendants therein are not entitled to no-fault coverage for the March 9, 2015 accident. For the reasons stated in K.O. Med., P.C. v Mercury Cas. Co. (57 Misc 3d 155[A], 2017 NY Slip Op 51614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), in the interest of judicial economy, we take judicial notice of the judgment in that action which declares that plaintiff and its assignor “are not entitled to no-fault benefits as a result of a motor vehicle accident that occurred on 03/09/15” and that “any and all arbitrations or matters in a court of competent jurisdiction involving any of the Defendants as Assignee of Marie Vil . . . regarding a motor vehicle accident that occurred on 03/09/15, are permanently stayed and dismissed.” Upon taking such judicial notice, we award defendant summary judgment dismissing the complaint pursuant to CPLR 3212 (b) and dismiss as academic so much of the appeal as is from the portion of the Civil Court’s order that denied defendant’s motion for summary judgment (see id.; see also Maiga Prods. Corp. v Hertz Co., 61 Misc 3d 132[A], 2018 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

Paul Kenny

[*1]

Peter C. Merani, P.C., New York, NY (Stephen C. Lanzone and Samuel A. Kamara of counsel), for appellant.

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for respondent.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered April 3, 2017. The order, insofar as appealed from, denied those branches of the plaintiff’s motion which were for summary judgment on the complaint and dismissing the defendant’s counterclaim for no-fault benefits, or, in the alternative, pursuant to CPLR 3211 (a) (3) to dismiss the defendant’s counterclaim for no-fault benefits for lack of standing, and granted those branches of the defendant’s cross motion which were for summary judgment dismissing so much of the complaint as alleged that she lacked standing and, in effect, for a determination that she had standing to seek recovery of no-fault insurance benefits from the plaintiff.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant, Stacey Kapeleris, was involved in a motor vehicle collision on April 15, 2008. In October 2008, Kapeleris underwent spinal surgery at Winthrop University Hospital (hereinafter Winthrop), which was performed by a physician associated with Long Island Neurosurgical Associates, P.C. (hereinafter LI Neurosurgical). Nassau Anesthesia Associates (hereinafter Nassau Anesthesia) provided the anesthesia services for the surgery. Kapeleris assigned her right to no-fault insurance benefits for medical expenses to Winthrop and to Nancy E. Epstein, a physician who was associated with LI Neurosurgical. On appeal, the parties do not dispute that the assignment to Winthrop constituted a valid assignment at the time of its execution within the meaning of the relevant no-fault regulations.

In November 2008, Winthrop submitted a claim to Kapeleris’s insurer, the plaintiff, Allstate Insurance Company (hereinafter Allstate), for no-fault insurance benefits for Kapeleris’s surgery and related care in the amount of $51,489.16. That same month, LI Neurosurgical submitted a claim to Allstate in the amount of $6,348.99, and Nassau Anesthesia submitted a claim for $1,263.63. Allstate denied all three claims on the ground that the services were not medically necessary based upon an independent medical examination that was performed in August 2008. Subsequently, the three providers billed Kapeleris directly for their services. In August 2011, Kapeleris settled the bills submitted by the three providers through direct payments made from an attorney trust account by the attorneys representing Kapeleris in connection with her personal injury action stemming from the underlying accident. Payment was made to Winthrop in the amount of $21,317.02, to LI Neurosurgical in the amount of $2,250, and to Nassau Anesthesia in the amount of $1,542.86.

In February 2014, Kapeleris submitted the matter to arbitration seeking $33,588.11 in connection with the three claims at issue. In March 2015, the arbitrator rendered an award in favor of Kapeleris in the sum of $10,682.87. Allstate appealed the award to a master arbitrator, who affirmed the award.

On August 6, 2015, Allstate commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of Kapeleris’s claims for no-fault insurance benefits. Kapeleris served an answer to the complaint containing, inter alia, a counterclaim for no-fault benefits. Allstate moved, inter alia, for summary judgment on the complaint and dismissing Kapeleris’s counterclaim for no-fault benefits or, in the alternative, pursuant to CPLR 3211 (a) (3) to dismiss Kapeleris’s counterclaim for no-fault benefits for lack of standing, arguing that Kapeleris assigned her rights to those benefits to the medical providers that treated her. Kapeleris cross-moved, among other things, for summary judgment dismissing so much of the complaint as alleged that she lacked standing and, in effect, for a determination that she had standing to seek recovery of no-fault insurance benefits from Allstate. The Supreme Court, inter alia, denied Allstate’s motion, and granted the aforementioned branches of Kapeleris’s cross motion. With respect to the issue of standing, the court determined, among other things, that since Kapeleris had tendered payment to Winthrop and LI Neurosurgical from her own proceeds, she had standing to pursue any claims for reimbursement against Allstate for nonpayment.

An accident victim may assign his or her no-fault claim to a medical provider who has provided a medical service (see 11 NYCRR 65-3.11; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 764-765 [2007]). The no-fault regulations provide that assignments must be made on the prescribed statutory forms (see 11 NYCRR 65-3.11 [b] [2]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59, 61 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). The prescribed language requires the assignee (treatment provider) to certify that “[t]hey have not received any payment from or on behalf of the assignor [patient] and shall not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident” (11 NYCRR Appendix 13 [NYS Forms NF-3, NF-4, NF-5, NF-AOB]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60). In this regard, as set forth in an informal opinion issued by the Office of the General Counsel of the New York State Insurance Department, “a health care provider who has accepted a no-fault assignment of benefits from a no-fault claimant may not pursue the patient directly for health services rendered that have been denied as medically unnecessary, notwithstanding the language of the assignment, which states ‘in the event that the no-fault carrier fails or refuses to pay for the services provided then I, the patient, agree that I will be responsible for the value of services rendered by said Doctor,’ ” as “[t]he use of such language is prohibited under N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b) (2) (2005) (Regulation 68-C)” (Ops Gen Counsel NY Ins Dept No. 06-05-07 [May 2006]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60; see also A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2012] [“informal opinion of the General Counsel, while not binding on the courts, is entitled to deference unless irrational or unreasonable” (citation omitted)]).

Here, in support of her cross motion, Kapeleris submitted evidence establishing that although she had assigned her right to no-fault benefits to two medical providers, Winthrop and Nancy E. Epstein, she was billed directly by Winthrop and LI Neurosurgical for their services after the claims of those providers were denied by Allstate for lack of medical necessity (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209, 1211 [2018]). Further, Kapeleris’s evidentiary submissions showed that she remitted payment to those providers for their services in connection with the subject accident. Thus, Kapeleris’s evidentiary submissions showed that neither Winthrop nor LI Neurosurgical could certify that “[t]hey have not received any payment from or on behalf of the assignor [Kapeleris],” and that they would “not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident.” This evidence was sufficient to demonstrate, prima facie, that the assignment to Winthrop and LI Neurosurgical, though valid when made, had been rendered ineffectual, and therefore, Kapeleris had standing to pursue her claims for no-fault benefits against Allstate for services rendered by Winthrop and LI Neurosurgical.

Furthermore, Kapeleris demonstrated that she did not execute an assignment of her rights to collect no-fault benefits to Nassau Anesthesia (see 11 NYCRR 65-3.11 [b] [1], [2]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Thus, Kapeleris also demonstrated, prima facie, that she had standing to pursue her claim for no-fault benefits against Allstate for the payment she made to Nassau Anesthesia.

In opposition, Allstate failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The parties’ remaining contentions either need not be reached in light of our determination, are without merit, or are not properly before this Court.

Accordingly, we agree with the Supreme Court’s determination denying those branches of Allstate’s motion which were for summary judgment on the complaint and dismissing Kapeleris’s counterclaim for no-fault benefits, or, in the alternative, pursuant to CPLR 3211 (a) (3) to dismiss Kapeleris’s counterclaim for no-fault benefits for lack of standing, and granting those branches of Kapeleris’s cross motion which were for summary judgment dismissing so much of the complaint as alleged that she lacked standing and, in effect, for a determination that she had standing to seek recovery of no-fault insurance benefits from Allstate. Rivera, J.P., Roman, Hinds-Radix and Duffy, JJ., concur.

Law Office of David O’Connor, PC (David O’Connor of counsel), for appellant. Law Office of Aloy O. Ibuzor (Theresa M. Carrubba and William Angstreich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), entered November 20, 2018. The order denied plaintiff’s motion for leave to renew, in effect, its opposition to the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest, which prior motion had been granted in an order of that court dated June 18, 2018 to the extent of tolling no-fault interest from August 9, 2002 to August 18, 2017 and, upon renewal, to deny that branch of defendant’s motion.

ORDERED that the order entered November 20, 2018 is affirmed, with $25 costs.

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2001. Plaintiff served a notice of trial dated July 21, 2017. Defendant moved to strike the notice of trial and to dismiss the complaint or, in the alternative, to toll the accrual of no-fault statutory interest. By order dated June 18, 2018, the Civil Court granted the branch of defendant’s motion seeking to toll the accrual of no-fault interest to the extent of tolling the interest from August 9, 2002 to August 18, 2017, and denied the other branches of defendant’s motion. Plaintiff moved for leave to renew, in effect, its opposition to the branch of defendant’s motion seeking to toll the no-fault interest, arguing that there had been a change in the law. By order [*2]entered November 20, 2018, the Civil Court denied the motion.

Pursuant to CPLR 2221 (e) (2) and (3), a motion for leave to renew “(2) shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and (3) shall contain reasonable justification for the failure to present such facts on the prior motion.” In the June 18, 2018 order, the court tolled the no-fault interest based upon a provision of the No-Fault Regulations which states that, once an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65.15 [h], now 11 NYCRR 65—3.9 [d]; see also Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In Eagle Surgical Supply, Inc. v Country-Wide Ins. Co. (58 Misc 3d 154[A], 2018 NY Slip Op 50157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), this court declined to toll the interest because, in that case, it was not clear from the record that the plaintiff had caused the delay. Plaintiff’s motion for leave to renew was based upon the argument that Eagle Surgical Supply, Inc. represents a change in the law. Since that case merely applied the existing law to a new set of facts, it does not represent a change in the law, and plaintiff’s motion for leave to renew was properly denied.

Accordingly, the order is affirmed.

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

Paul Kenny

Decided on May 1, 2020

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

Decided on May 1, 2020

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

Law Office of David O’Connor, PC (David O’Connor of counsel), for appellant. Law Office of Aloy O. Ibuzor (Theresa M. Carrubba and William Angstreich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), entered June 20, 2018. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest based upon plaintiff’s delay in the prosecution of the action to the extent of tolling that interest from March 24, 2003 to July 13, 2017.

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

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2001. The record demonstrates that issue was joined in July 2002, that plaintiff served responses to defendant’s discovery demands on March 24, 2003, and that plaintiff filed a notice of trial dated July 13, 2017. Defendant moved to strike the notice of trial and to dismiss the complaint or, in the alternative, to toll the accrual of no-fault statutory interest. By order entered June 20, 2018, the Civil Court granted the branch of defendant’s motion seeking to toll the accrual of no-fault interest to the extent of tolling the interest from March 24, 2003 to July 13, 2017, and denied the other branches of defendant’s motion. Plaintiff appeals from so much of the order as tolled the no-fault interest.

Where a provider does not commence a no-fault action within 30 days of receipt of the insurer’s denial of claim form, the Insurance Department Regulations provide that statutory interest (see Insurance Law § 5106 [a]) does not begin to accumulate until an action is commenced (11 NYCRR 65-3.9 [c]). If an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). In this case, the Civil Court tolled the no-fault interest between the date plaintiff served responses to defendant’s discovery demands and the date plaintiff filed the notice of trial. Plaintiff’s argument on appeal, that it was defendant which had “unreasonably delay[ed]” the action by failing to serve responses to plaintiff’s discovery demands, is not supported by the record and, in any event, lacks merit (see Vitality Chiropractic, P.C. v Countrywide Ins., 59 Misc 3d 150[A], 2018 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

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

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

Paul Kenny

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Richard T. Lau & Associates (Anna Peereira 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 July 17, 2018. 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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

The motor vehicle accident in question occurred on September 4, 2013. Defendant’s motion was based on its alleged cancellation of the subject insurance policy on August 28, 2013. However, the papers defendant submitted in support of its motion failed to demonstrate, by admissible proof, that it had filed a copy of the notice of cancellation with the Department of Motor Vehicles within 30 days of the effective date of the cancellation as required by Vehicle and Traffic Law § 313 (2) (a) (see Vehicle and Traffic Law § 313 [3]; Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Advanced [*2]Med. Care, P.C. v Allstate Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50130[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; GL Acupuncture, P.C. v Geico Ins. Co., 48 Misc 3d 141[A], 2015 NY Slip Op 51239[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant has not demonstrated that the cancellation of the policy was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [3]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been denied.

Plaintiff’s cross-moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Consequently, the Civil Court properly denied plaintiff’s cross motion for summary judgment.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

Paul Kenny

Decided on March 13, 2020

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

Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuyan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 22, 2018. The order granted the branch of defendant’s motion seeking to vacate so much of that court’s September 6, 2016 judgment, entered pursuant to an order of that court (Robin S. Garson, J.) dated July 6, 2016 granting plaintiff’s unopposed motion for summary judgment, as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie.

ORDERED that the order entered February 22, 2018 is reversed, with $30 costs, and the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie is denied.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services provided as a result of a motor vehicle accident, which had occurred on January 19, 2015. After issue had been joined, the Civil Court (Robin S. Garson, J.), by order dated July 6, 2016, granted plaintiff’s unopposed motion for summary judgment. A judgment in the principal sum of $15,027.72 was entered in the Civil Court on September 6, 2016 pursuant to the order. On July 6, 2016, before [*2]the judgment was entered in the Civil Court, defendant Global Liberty Ins. of NY (Global Liberty) commenced a declaratory judgment action in the Supreme Court, Bronx County, against Master Cheng Acupuncture, P.C. and three of its assignors herein, Jocelyn Defou, Ebenior Jacques and Thahina McKenzie, among others. Thereafter, Global Liberty moved in the Supreme Court for leave to enter a default judgment against, insofar as is relevant to this appeal, Master Cheng Acupuncture, P.C., Defou, Jacques and McKenzie. On March 16, 2017, an amended declaratory judgment in favor of Global Liberty was entered in the Supreme Court upon the default of those parties. The Supreme Court held that those parties are not entitled to no-fault benefits as a result of the motor vehicle accident that occurred on January 19, 2015, due to the failure to appear for scheduled examinations under oath, and that “all judgments in any actions involving the listed Medical Provider Defendants [including plaintiff herein] as Assignee of [Defou, McKenzie and Jacques] are permanently stayed and all judgments are vacated.” Relying upon the Supreme Court’s judgment in the declaratory judgment action, defendant moved in the Civil Court to vacate the judgment which had been entered on September 6, 2016 in the Civil Court. Plaintiff opposed the motion. By order entered February 22, 2018, the Civil Court (Harriet L. Thompson, J.) granted the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Defou, Jacques and McKenzie. The court stated that, although it found that defendant had not demonstrated an excusable default, the court was “constrained” by the declaratory judgment which had permanently stayed and vacated “any and all judgments regarding” plaintiff and the named assignors. This appeal by plaintiff ensued.

Reliance by the Civil Court and defendant upon the part of the Supreme Court’s amended declaratory judgment stating that all judgments in any actions involving plaintiff herein, Master Cheng Acupuncture, P.C., as assignee of Defou, McKenzie and Jacques “are vacated” is misplaced, as “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; Bronx Med. Diagnostic, P.C. v Global Liberty Ins. of NY, 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see Campbell v Bank of Am., N.A., 155 AD3d 820 [2017]; Commissioner of Labor of State of NY v Hinman, 103 AD2d 886 [1984]). As the Supreme Court lacked the authority to vacate the judgment which had been rendered by the Civil Court in the instant action (see Campbell, 155 AD3d 820; Chestnut Hill Real Estate, 280 AD2d 446; Commissioner of Labor of State of NY, 103 AD2d 886; Bronx Med. Diagnostic, P.C., 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U]), the Civil Court erred in finding that it was constrained by the Supreme Court’s judgment to grant the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie. Consequently, that part of the judgment should not have been vacated.^[FN1]

Accordingly, the order entered February 22, 2018 is reversed and the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie is denied.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 13, 2020

Footnotes

Footnote 1: We note that the amended declaratory judgment permanently stayed enforcement of so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Defou, Jacques and McKenzie.