Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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 January 3, 2018, and from a judgment of that court entered April 13, 2018. The order denied defendant’s motion to, among other things, vacate a judgment of that court entered July 22, 2016 upon defendant’s failure to appear or answer the complaint and granted plaintiff’s cross motion for costs and sanctions, pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1, to the extent of awarding plaintiff costs in the principal sum of $250. The April 13, 2018 judgment, entered pursuant to the January 3, 2018 order, awarded plaintiff the principal sum of $250 in costs.

ORDERED that, on the court’s own motion, so much of the notice of appeal as is from so much of the order as awarded plaintiff costs in the principal sum of $250 is deemed a premature notice of appeal from the judgment entered April 13, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment entered April 13, 2018 is reversed, without costs, so much of the order as granted the branch of plaintiff’s cross motion seeking costs is vacated, and that branch of plaintiff’s cross motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on July 22, 2016 upon defendant’s failure to appear or answer the complaint, which had been delivered to an individual known by the licensed process server to be a general agent of defendant who was authorized to accept service on behalf of defendant. Defendant thereafter moved to, among other things, vacate the default judgment pursuant to CPLR 5015 (a) (1), arguing that it had a reasonable excuse for the default, in that defendant did not have any record of having received the summons and complaint, and that it had a potentially meritorious defense to the action. Plaintiff cross-moved for an order pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1, imposing sanctions and costs. In an order entered January 3, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion to the extent of awarding plaintiff the sum of $250 in costs. A judgment awarding plaintiff the principal sum of $250 was entered on April 13, 2018.

The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by alleging service upon a general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]). Thus, to vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

In an affidavit in support of defendant’s motion, defendant’s claim representative stated that defendant’s excuse for failing to answer the complaint was that it did not have a record of having received the summons and complaint.

“However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person” (Pierre J. Renelique Physician, P.C., 64 Misc 3d at 100).

As defendant failed to demonstrate a reasonable excuse for its default, it is not necessary to consider whether defendant offered a potentially meritorious defense to the action (see Bank of Am., N.A. v Welga, 157 AD3d 753 [2018]). Consequently, the Civil Court properly denied defendant’s motion.

The Civil Court should have also denied the branch of plaintiff’s cross motion seeking an award of costs pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1. “A court, in its discretion, may award to any party or attorney in a civil action . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct” (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a]). While the Civil Court noted in its order that plaintiff had presented evidence of a pattern of numerous similar defaults by this defendant in other cases, this fact, standing alone, is insufficient to establish that defendant’s conduct was frivolous within the meaning of Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) (see Liang v Yi Jing Tan, 155 AD3d 1023 [2017]). Indeed, the Civil Court did not even state that defendant’s behavior was frivolous, nor did it set forth the reasons why the award of costs to plaintiff was appropriate (see Vogel v Vogel, 128 AD3d 681 [2015]) or why the sum of $250 was justified in the absence of a demonstration of “actual expenses reasonably incurred” (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a]).

Accordingly, the judgment entered April 13, 2018 is reversed, so much of the order as granted the branch of plaintiff’s cross motion seeking costs is vacated, that branch of plaintiff’s cross motion is denied, and the remainder of the order is affirmed.

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

Paul Kenny

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 14, 2018. The order denied defendant’s motion to vacate a judgment of that court entered March 13, 2017 upon defendant’s failure to appear or answer the complaint and, in effect, to extend defendant’s time to answer and direct plaintiff to accept a corrected answer.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff served the summons and complaint on defendant on October 31, 2016. A default judgment was entered on March 13, 2017 based on defendant’s failure to answer the complaint or otherwise appear in the action. In December 2017, defendant moved to vacate the default judgment, arguing that it had timely answered the complaint, albeit with the wrong index number, and annexing an affidavit of service which demonstrated that defendant had served that answer on November 30, 2016. Defendant further contended that it had potentially meritorious defenses to the action, in that the provided services lacked medical necessity and the limits of the insurance policy had been exhausted. In opposition, plaintiff annexed a letter dated December 9, 2016 [*2]from its attorney’s office rejecting defendant’s answer because the answer contained the wrong index number. Plaintiff asserted that defendant had not submitted a new answer with the corrected index number until December 13, 2017. Plaintiff also argued that defendant had failed to assert a potentially meritorious defense, and that, as a result, the default judgment should not be vacated. By order entered November 14, 2018, the Civil Court denied defendant’s motion, finding that defendant had not proffered a reasonable excuse for failing to timely interpose an answer.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay” in answering the complaint (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Gately v Drummond, 161 AD3d 947 [2018]; Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907, 908 [2015]).

Upon the record presented, we agree with the Civil Court that defendant failed to explain why defendant had waited a year after its initial answer was rejected before serving a new answer bearing the correct index number. Consequently, we find that defendant failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether defendant offered a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]).

Accordingly, the order is affirmed.

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

Decided on February 14, 2020

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 25, 2018. The order granted defendant’s motion, pursuant to, among other things, CPLR 3211 (a) (8), to dismiss the complaint for lack of personal jurisdiction and denied plaintiff’s “cross motion” for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to, among other things, CPLR 3211 (a) (8), to dismiss the complaint. Plaintiff opposed defendant’s motion and “cross-moved” for summary judgment. In support of its motion, defendant alleged, among other things, that it conducts no business in the State of New York, including that it does not issue insurance policies here and has no sales representative or agent within the State, and is not licensed to transact business within the State of New York. In an order entered June 25, 2018, defendant’s motion was granted and plaintiff’s cross motion was denied.

Upon defendant’s prima facie showing that the Civil Court lacked personal jurisdiction over this nonresident on the ground that there was no jurisdictional basis for suit in the Civil Court of the City of New York (see CCA 404), the burden shifted to plaintiff, which purported to have effectuated service by mail to the out-of-state defendant, to establish that it had a jurisdictional basis for the service, as plaintiff “carries the ultimate burden of proof on that issue” [*2](Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; see also Sanchez v Major, 289 AD2d 320 [2001]; Brandt v Toraby, 273 AD2d 429 [2000]; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In determining whether a plaintiff has met its burden, a court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to plaintiff, and must resolve all doubts in favor of jurisdiction (see Brandt, 273 AD2d at 430). Here, plaintiff failed to meet its burden. Plaintiff’s opposition papers consisted only of the affidavit of its owner attesting to the mailing policies and procedures of plaintiff, and the affirmation of its counsel, who had no personal knowledge of the underlying facts (see Carte v Parkoff, 152 AD2d 615 [1989]). Plaintiff failed to produce evidence showing a jurisdictional basis for the service (see CCA 404; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]; see also Matter of Hereford Ins. Co. v American Ind. Ins., 136 AD3d 551 [2016]).

In view of the foregoing, we do not consider plaintiff’s other arguments.

Accordingly, the order is affirmed.

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

Law Office of David O’Connor, P.C. (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered July 3, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.

“[A] court ‘ha[s] no power whatsoever’ to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a [notice of trial]” (Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 [2013], quoting Hodge v New York City Tr. Auth., 273 AD2d 42, 43 [2000]; see also Chase v Scavuzzo, 87 NY2d 228 [1995]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and “the doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b)” (Arroyo, 110 AD3d at 20; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]). As defendant does not claim to have served a demand pursuant to CPLR 3216, it was error for the Civil Court to grant the branch of defendant’s motion seeking to dismiss the complaint based on laches.

In light of this court’s determination, the matter must be remitted to the Civil Court for a determination of the remaining branches of defendant’s motion, as they are no longer moot.

Accordingly, the order is reversed, the branch of defendant’s motion seeking to dismiss [*2]the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 12, 2018. The order denied defendant’s motion to consolidate four other actions pending before that court with the instant action and, upon consolidation, to compel the Clerk of the Civil Court to, in effect, deem the notice of appeal filed in the instant action to be a notice of appeal of the consolidated action and to accept an undertaking in the consolidated action.

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. After issue was joined, defendant moved for an order, pursuant to CPLR 602 (a), to consolidate the present action with four other actions pending before the court and, upon consolidation, to, in effect, open its defaults in appearing at trial. By order entered May 8, 2018, the Civil Court denied the branch of defendant’s motion seeking to, in effect, open its defaults and did not reach the branch seeking consolidation of the actions. Defendant has separately appealed from the May 8, 2018 order (see Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez v Global Liberty Ins. Co. of NY, ___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-1857 K C], decided herewith). On that appeal, defendant proffered an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual Chiropractic, P.C.” seeking no-fault benefits as assignee of Ruben Rodriguez pertaining to the same accident and under the same claim number as those at bar are “permanently stayed.” This court is dismissing that appeal on the ground that any determination therein would not, under the facts therein, have a direct effect upon the parties.

The instant appeal concerns a motion made by defendant in June 2018, pursuant to CPLR [*2]602 (a), to consolidate the present action with four other actions and, upon consolidation, “to have the Clerk of the Civil Court . . . County of Kings, compelled to deem the appeal [of the instant action] . . . to be an appeal of the within joined actions” and to accept an undertaking pertaining to all of the actions. Plaintiff opposed the motion. Defendant appeals from an order of the Civil Court entered December 12, 2018 denying defendant’s motion.

In view of the dismissal of the appeal in Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez v Global Liberty Ins. Co. of NY, ___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-1857 K C], decided herewith), this action is no longer a viable pending action with which to consolidate any other actions.

Accordingly, the appeal is dismissed.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 8, 2018. The order denied the branch of defendant’s motion seeking to, in effect, open its default in appearing for trial.

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover assigned first-party no-fault benefits as assignee of Ruben Rodriguez, who was allegedly injured in a motor vehicle accident on December 5, 2013. After issue was joined, counsel from The Law Office of Jason Tenenbaum appeared for defendant for trial, but was told by the Civil Court that his office was not counsel of record, and the matter was adjourned. On the adjourned date, April 20, 2017, the court granted plaintiff’s application to mark the case “inquest clerk” and hold defendant in default. By order to show cause dated May 12, 2017, defendant moved to consolidate the present action with four other actions pending in the Civil Court and, upon consolidation, to, in effect, open its defaults in appearing for trial. Defendant supported the motion with a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C., as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court denied the branch of defendant’s unopposed motion seeking to, in effect, open its defaults in appearing for trial, finding that defendant had failed to proffer a reasonable excuse for the failure by its incoming counsel to provide “proper proof of its legal representation of defendant.” The Civil Court did not reach the branch of defendant’s motion seeking, pursuant to CPLR 602 (a), consolidation.

On the instant appeal, defendant has annexed to its brief an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual [*2]Chiropractic, P.C.” seeking no-fault benefits under the same claim number and regarding the same assignor and motor vehicle accident as in the case at bar are permanently stayed. As a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, in the interest of judicial economy, takes judicial notice of the Supreme Court’s order entered February 9, 2018, which permanently “stays” the parties from proceeding further in the action at bar.

In light of the stay issued by the Supreme Court, this appeal has “been rendered academic as any determination on [this] appeal[ ] would not, under the facts of this case, have a direct effect upon the parties” (Matter of Claudia G. [Ermelio G.], 71 AD3d 894, 895 [2010]).

Accordingly, the appeal is dismissed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Mccormack & Mattei, P.C. (Jamila Shukry and Erin O’Neill 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 7, 2018. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue, and implicitly denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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, among others, that plaintiff lacked standing to bring the action because it did not possess a license to distribute the products at issue. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered February 7, 2018, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked standing to bring the action, and implicitly denied plaintiff’s cross motion. The court stated that defendant’s licensing defense is not precludable and noted that, in two separate orders in a declaratory judgment action, the Supreme Court, Nassau County, had found that plaintiff herein lacked a license to distribute its products. The Civil Court did not reach the remaining branches of defendant’s motion, which sought summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath and that the limits of the insurance policy had been exhausted.

“The proponent of a summary judgment motion must make a prima facie showing of [*2]entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In an affidavit in support of the branch of defendant’s motion seeking summary judgment on the ground that plaintiff lacked the required license to distribute the supplies at issue, defendant’s medical investigator admitted that plaintiff had obtained a license with the New York City Department of Consumer Affairs on October 12, 2011, and the affidavit of defendant’s claims specialist demonstrated that the supplies had been provided after that date. Thus, defendant’s evidence was insufficient to demonstrate the absence of any material issues of fact (see id.) regarding plaintiff’s licensing. Furthermore, to the extent that the Civil Court considered prior determinations by the Supreme Court, Nassau County, in the declaratory judgment action, as the Supreme Court’s orders pertained to supplies that had been distributed before October 12, 2011, the Civil Court’s reliance on the orders of the Supreme Court was misplaced, and the branch of defendant’s motion based on plaintiff’s alleged lack of a license should have been denied.

Contrary to plaintiff’s assertion, plaintiff was not entitled to summary judgment, 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 the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Talia Beard of counsel), for appellant. Petre and Associates, P.C. (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered December 14, 2017. The order denied defendant’s motion to vacate an order of that court dated January 20, 2017 granting plaintiff’s motion for summary judgment upon defendant’s failure to timely serve its opposing papers and cross motion as provided for in a stipulation of settlement.

ORDERED that the order entered December 14, 2017 is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits and subsequently moved for summary judgment. In a stipulation dated April 4, 2016, the parties agreed, among other things, that plaintiff’s summary judgment motion would be adjourned to January 17, 2017, and that “Opposition to the within motion and all cross-motions must be served on or before August 17, 2016. Any cross-motions served beyond this date will be deemed untimely.” On December 16, 2016, defendant served plaintiff with its cross motion, which included its opposition to plaintiff’s motion. Plaintiff opposed the cross motion. By order dated January 20, 2017, the Civil Court granted plaintiff’s motion upon defendant’s default in timely serving its cross motion “as per the stipulation.” Thereafter, defendant moved to, among other things, vacate the January 20, 2017 default order. Plaintiff opposed the motion. By order entered December 14, 2017, the Civil Court denied defendant’s motion, finding that the “motion [is] incomplete” since “defendant[‘s] papers are missing the adjournment stipulation which set up the briefing schedule for the original motion.”

In support of defendant’s appellate contention that its motion to vacate should have been granted, defendant argues that, pursuant to the April 4, 2016 stipulation, its opposition papers and cross motion had to be served on or before “October 16, 2016” [sic], and it is of no consequence [*2]that a copy of the stipulation was not annexed to its papers submitted in support of its motion to vacate the January 20, 2017 order, since the contents of the stipulation are uncontroverted. However, CPLR 2214 (c) clearly provides that “The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved.” As the stipulation was most certainly “necessary to the consideration of the questions involved,” the Civil Court properly denied defendant’s motion to vacate (see CPLR 2214 [c]; Cripps v Dibisceglie, 172 AD3d 1305, 1306 [2019]; Wells Fargo Home Mtge., Inc. v Mercer, 35 AD3d 728 [2006]; Rudzinski v Jonathan L. Glashow, MD, PC, 55 Misc 3d 1215[A], 2017 NY Slip Op 50583[U], *3 [Sup Ct, Kings County 2017]). In any event, defendant failed to establish a reasonable excuse for its default based on law office failure (see CPLR 2005), as it did not “submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]).

In view of the foregoing, we pass on no other issue.

Accordingly, the order entered December 14, 2017 is affirmed.

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

Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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 June 15, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits in the amount of $2,738.52, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

On appeal, defendant argues that the Civil Court lacked “jurisdiction” because defendant is not covered by the provisions of New York Insurance Law § 5107. To the extent that the argument goes to subject matter jurisdiction, it lacks merit. As the complaint seeks to recover a sum of less than $25,000, this action falls within the subject matter jurisdiction of the Civil Court (see CCA 202).

To the extent that defendant asserts lack of personal jurisdiction, there is no need to consider defendant’s claimed lack of contacts with New York since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at [*2]649; Osserman v Osserman, 92 AD2d 932 [1983]).

Even if we view defendant’s argument on appeal as a claim that, on the merits, there is no liability here because defendant is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant failed to demonstrate that its policy did not, in fact, provide for such coverage (see Masigla v Windhaven Ins. Co., 64 Misc 3d 137[A], 2019 NY Slip Op 51169[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant did not demonstrate its entitlement to judgment as a matter of law.

Accordingly, the order is affirmed.

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