The Rybak Firm, PLLC (Damin J. Toell and Richard Ruzhik of counsel), for appellant. Rivkin Radler, LLP (J’Naia L. Boyd 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 November 3, 2017. The order granted defendant’s motion to vacate an order of that court (Robin Kelly Sheares, J.) dated August 12, 2016 granting plaintiff’s prior unopposed motion for summary judgment, and upon such vacatur, to deny plaintiff’s prior motion and grant defendant’s motion for summary judgment dismissing the complaint, to the extent of vacating the August 12, 2016 order and the judgment entered January 10, 2017 pursuant thereto, and, in effect, denying plaintiff’s prior motion and “reinstat[ing]” an October 27, 2016 order of that court (Robin S. Garson, J.) granting defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered November 3, 2017 is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new determination of defendant’s motion to vacate the August 12, 2016 default order, and, upon such vacatur, to deny plaintiff’s prior motion for summary judgment and grant defendant summary judgment dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff served a motion for summary judgment on October 7, 2015, returnable on November 9, 2015, which, by stipulation, was adjourned to August 12, 2016. On December 23, 2015, while [*2]plaintiff’s motion was pending, defendant served a motion for summary judgment dismissing the complaint, returnable on January 25, 2016, which, by stipulation, was adjourned to October 26, 2016. On August 12, 2016, despite defendant’s request for an adjournment of plaintiff’s motion to the return date of defendant’s own pending motion for summary judgment, presumably so that the motions could be decided together, the Civil Court (Robin Kelly Sheares, J.) granted plaintiff’s unopposed motion for summary judgment. Three days later, on August 15, 2016, plaintiff served opposition papers to defendant’s still-pending motion for summary judgment, which plaintiff denominated as “Defendant’s cross-motion”; those papers also referenced and purported to further support “plaintiff’s motion for summary judgment.”

By order to show cause signed on October 20, 2016, defendant moved to vacate the August 12, 2016 order granting plaintiff’s unopposed motion for summary judgment and, upon such vacatur, to deny plaintiff’s prior motion and grant defendant summary judgment dismissing the complaint. While that motion was pending, the Civil Court (Robin S. Garson, J.), by order entered October 27, 2016, granted defendant’s motion for summary judgment dismissing the complaint. On January 10, 2017, a default judgment was entered awarding plaintiff the principal sum of $2,418.95, based upon the August 12, 2016 order. On August 18, 2017, plaintiff served opposition papers to defendant’s October 20, 2016 motion. Defendant subsequently served reply papers, attaching the October 27, 2016 order granting its motion for summary judgment dismissing the complaint. By order entered November 3, 2017, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion to the extent of vacating the August 12, 2016 order and the January 10, 2017 judgment entered pursuant thereto, and, in effect, denying plaintiff’s prior motion and “reinstat[ing]” the October 27, 2016 order granting defendant’s motion for summary judgment dismissing the complaint, giving it “full force and effect.”

In order to vacate a default order or judgment pursuant to CPLR 5015 (a) (1), a defendant must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Li Fen Li v Cannon Co., Inc., 155 AD3d 858 [2017]; Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557 [2014]). Here, in the November 3, 2017 order, the Civil Court relied on the October 27, 2016 order, which awarded summary judgment to defendant, to find that defendant had a potentially meritorious defense to the action sufficient to warrant the vacatur of the August 12, 2016 order.

A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Here, the grant of summary judgment to plaintiff by order dated August 12, 2016 was a final determination of the action. Therefore, the Civil Court should not have issued its October 27, 2016 order granting defendant’s motion for summary judgment, since it should not even have entertained that motion, as that motion did not seek to vacate the August 12, 2016 order granting plaintiff’s motion for summary judgment upon defendant’s default. Consequently, it was error for the Civil Court, in its November 3, 2017 order, [*3]to rely on the October 27, 2016 order—which purported to award defendant summary judgment after plaintiff had already been awarded summary judgment on August 12, 2016—and to find, by virtue of the October 27, 2016 order, that defendant had established a meritorious defense, in order to grant the branch of defendant’s motion seeking to vacate the August 12, 2016 order (and, in effect, the January 10, 2017 judgment entered pursuant thereto). Rather, the Civil Court should have made its own independent assessment of the merits of the branch of defendant’s motion seeking to vacate the August 12, 2016 order based on the facts submitted in those motion papers in order to determine whether the default should be vacated and, if so, whether upon such vacatur, the branch of defendant’s motion seeking summary judgment should be granted.

Accordingly, the order entered November 3, 2017 is reversed and the matter is remitted to the Civil Court for a new determination of defendant’s motion to vacate the August 12, 2016 default order and, upon such vacatur, to deny plaintiff’s prior motion for summary judgment and grant defendant summary judgment dismissing the complaint.

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

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gabriel & Shapiro, LLC (Lenard Brumfield, Esq.), for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (James F. Matthews, J.), dated November 2, 2017. The order granted the petition in a CPLR 7511 proceeding to vacate a master arbitrator’s award dated December 19, 2016, and, upon such vacatur, in effect, confirmed the arbitrator’s award and awarded attorney’s fees to petitioner.

ORDERED that the order is affirmed, with $25 costs, and the matter is remitted to the District Court for further proceedings consistent herewith.

After a provider’s claims for assigned first-party no-fault benefits had been denied based on the provider’s “failure to cooperate” at an examination under oath, and upon “improper kickbacks,” “improper fee splitting,” “improper fee scheduling” and “billing for services not rendered,” the provider submitted the claims to arbitration pursuant to Insurance Law § 5106 (b). Following a hearing, the arbitrator found that the provider had established its prima facie case which the insurer had failed to rebut, and awarded the provider the monies it sought. The insurer appealed the award to the master arbitrator who, by an award dated December 19, 2016, vacated the arbitrator’s award and remitted the matter for a hearing before a new arbitrator. The provider then commenced this proceeding to vacate the master arbitrator’s award, pursuant to CPLR 7511 (1) (b) (iii), on the ground that the master arbitrator had exceeded his power. The insurer opposed the petition and requested that the master arbitrator’s award be confirmed. The District [*2]Court, by order dated November 2, 2017, from which the insurer appeals, found that there was a rational basis for the original arbitrator’s award, that the master arbitrator had “exceeded his statutory authority,” granted the petition, vacated the master arbitrator’s award, and, upon such vacatur, “reinstated” the original arbitrator’s award, and awarded attorney’s fees to the provider.

The scope of judicial review of a master arbitrator’s award is limited to whether the master arbitrator exceeded his power (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). The role of a master arbitrator “is to review the arbitrator’s determination to assure that it was reached in a rational manner and that the decision was not arbitrary and capricious. It does not include the power to review, de novo, the matter originally presented to the arbitrator” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]; see also Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Matter of Progressive Cas. Ins. Co. [Elite Med. Supply of NY, LLC], 162 AD3d 1471, 1472 [2018]). A master arbitrator exceeds his statutory power by making factual determinations, by reviewing factual and procedural errors committed at the original arbitration hearing, by weighing the evidence, or by resolving issues of credibility (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224; Matter of Richardson v Prudential Prop. & Cas. Ins. Co., 230 AD2d 861 [1996]; Matter of Allstate Ins. Co. v Keegan, 201 AD2d at 725).

Here, the master arbitrator vacated the arbitrator’s award based on “[t]he rational and what appears to [sic] insufficient evidence presented,” which necessarily involves a review of the facts by the master arbitrator (see e.g. Matter of Allstate Ins. Co. v Keegan, 201 AD2d at 725). Upon our review of the record, we find that there was a rational basis for the original arbitrator’s award. Consequently, the master arbitrator exceeded his authority by reviewing, de novo, factual issues already determined by the original arbitrator (see Matter of Richardson v Prudential Prop. & Cas. Ins. Co., 230 AD2d 861). We, thus, affirm the order of the Civil Court which vacated the master arbitrator’s award and, in effect, confirmed the arbitrator’s award (see CPLR 7511 [b] [1] [iii]; 7510).

Furthermore, the provider is entitled to recover reasonable attorney’s fees for this appeal (see 11 NYCRR § 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1169 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). Therefore, the matter is remitted to the District Court to determine the provider’s reasonable attorney’s fees for this appeal (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168).

Accordingly, the order is affirmed and the matter is remitted to the District Court for further proceedings relating to attorney’s fees.

It is noted that a proceeding to vacate or to confirm an arbitrator’s award is a special proceeding brought pursuant to CPLR article 4 and should, therefore, terminate in a judgment rather than an order (see CPLR 411).

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

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from February 3, 2003 through February 14, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2003. Defendant did not pay the settlement amount, and a judgment was entered on January 30, 2017, pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the interest. By order entered February 22, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from February 3, 2003 through February 14, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. [*2]Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

PESCE, P.J., and ELLIOT, J., concur.

WESTON, J., dissents and votes to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum:

This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 22, 2018 as sua sponte stayed the accrual of no-fault statutory interest from February 3, 2003 through February 14, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th [*3]& 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from February 3, 2003 to February 14, 2017 should be vacated.

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 20, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from February 20, 2008 through February 22, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2008. Defendant did not pay the settlement amount, and a judgment was entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 31, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from February 20, 2008 through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

PESCE, P.J., and ELLIOT, J., concur.

WESTON, J., dissents and votes to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum:

This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2008. Defendant did not pay the settlement amount, and a judgment was entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 20, 2018 as sua sponte stayed the accrual of no-fault statutory interest from February 20, 2008 through February 22, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v [*3]Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from February 20, 2008 to February 22, 2017 should be vacated.

[*1]

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for appellant.

Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York, NY (Benjamin Gonson of counsel), for respondents.

In an action, inter alia, for certain declaratory relief, the nominal defendant Hereford Insurance Company appeals from an order of the Supreme Court, Kings County (Andrew Borrok, J.), dated March 29, 2018. The order, insofar as appealed from, denied the motion of the nominal defendant Hereford Insurance Company for leave to enter a default judgment on its counterclaim for loss transfer pursuant to Insurance Law § 5105 (a) insofar as asserted against the plaintiff Repwest Insurance Company and deemed the reply of the plaintiff Repwest Insurance Company to the counterclaim to have been served.

Ordered that the order is reversed insofar as appealed from, on the law, with costs to the plaintiff Repwest Insurance Company, and the counterclaim of the nominal defendant Hereford Insurance Company is dismissed for lack of subject matter jurisdiction.

The plaintiff Repwest Insurance Company (hereinafter Repwest) commenced this action for a judgment declaring, inter alia, that it has no duty to provide insurance coverage for any claims arising out of a collision between a livery vehicle insured by the nominal defendant Hereford Insurance Company (hereinafter Hereford) and a vehicle driven by the defendant Nazim Hanif and insured by Repwest. The defendants Dinorah Carmen Anglero, Dario Ferrer de la Cruz, and Ramon Duarte Garcia were passengers in the livery vehicle and no-fault benefits were paid on their behalf by Hereford. Repwest alleged that there is no coverage for the subject incident because it was not an accident, but rather the result of an intentional act/fraudulent scheme. Thereafter, Hereford interposed an answer to the complaint and asserted a counterclaim against Repwest, among others, for loss transfer pursuant to Insurance Law § 5105 (a).

After Repwest failed to timely reply to the counterclaim, Hereford moved for leave to enter a default judgment on its counterclaim insofar as asserted against Repwest. The Supreme Court denied Hereford’s motion and deemed Repwest’s reply to the counterclaim to have been served. Hereford appeals.

Pursuant to Insurance Law § 5105 (b), “[t]he sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent” (see Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 149 AD3d 1075, 1076 [2017]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]). Contrary to Hereford’s contention, since its counterclaim is for loss transfer pursuant to section 5105 (a), the counterclaim is subject to mandatory arbitration and the Supreme Court had no subject matter jurisdiction over the counterclaim (see Insurance Law § 5105 [b]; State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978). Repwest’s complaint and its disclaimer of coverage for the subject incident do not dictate a different result (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978; DTG Operations, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 30119[U] [Sup Ct, NY County 2013]; 11 NYCRR 65-4.11 [a] [6]).

Although Repwest did not seek dismissal of the counterclaim in the Supreme Court, “a court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008] [internal quotation marks omitted]; see Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121, 133 [2018]). Since the court lacked subject matter jurisdiction over Hereford’s counterclaim, the counterclaim should have been dismissed (see Empire Ins. Co. v Metropolitan Suburban Bus. Auth., 159 AD2d 312, 312 [1990]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 978).

In light of our determination, we need not reach the parties’ remaining contentions. Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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