Decided on August 14, 2020

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

Decided on August 14, 2020

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara 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 March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

The process server’s affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant 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 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both 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., Inc., 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]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

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

[*1] (July 29, 2020)

Bruno, Gerbino & Soriano, LLP, Melville, NY (Nathan M. Shapiro of counsel), for appellant.

In an action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered August 1, 2019. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against the defendants Roy Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C., upon their failure to appear or answer the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Ameriprise Insurance Company, issued an automobile insurance policy to the defendant Roy Kim and his wife which covered, inter alia, a 2012 Chevrolet Camaro for the period from May 14, 2017, through November 14, 2017. Pursuant to the policy, Kim reported to the plaintiff that on August 14, 2017, the subject vehicle was involved in a hit-and-run accident in Queens, in which another vehicle allegedly reversed and struck the subject vehicle while it was parked, and then fled the scene. Upon receipt of such notification, the plaintiff conducted an investigation and concluded that neither Kim’s claim nor those of his no-fault benefit assignees were covered under the policy. The plaintiff commenced this action, inter alia, for a judgment declaring that pursuant to the policy, it has no duty to indemnify the defendants for any claims arising out of the subject accident. The defendants Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C. (hereinafter collectively the non-answering defendants) failed to appear or answer the complaint. The plaintiff then moved, inter alia, for leave to enter a default judgment against the non-answering defendants and the Supreme Court denied the motion.

“A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim” (Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606 [2017]; see CPLR 3215 [f]). “ '[A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that [the plaintiff] establish a right to a declaration’ ” against the defendants (JBBNY, LLC v Dedvukaj, 171 AD3d 898, 902 [2019], quoting Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 AD3d 1493, 1494 [2009]; see Merchants Ins. Co. of N.H. v Long Is. Pet Cemetery, 206 AD2d 827, 828 [1994]).

Here, while the plaintiff submitted proof of proper service of the summons and the complaint, the non-answering defendants’ default, and the facts constituting the plaintiff’s claim, the plaintiff’s submissions in support of the motion failed to establish its right to the declarations sought (see JBBNY, LLC v Dedvukaj, 171 AD3d at 902). As such, we agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the non-answering defendants.

Based on the foregoing, the plaintiff’s remaining contention has been rendered academic. Rivera, J.P., Chambers, Iannacci and Wooten, JJ., concur.

Decided on July 10, 2020

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

Decided on July 10, 2020

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

Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 15, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action against “21st Century Insurance Company” in the Civil Court on June 22, 2017 to recover assigned first-party no-fault benefits for services that had been provided to its assignor, who had allegedly been injured in an accident on June 7, 2011. Prior to the commencement of this action, 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had brought a declaratory judgment action in the Supreme Court, New York County, against plaintiff and its assignor herein, among other parties, pertaining to the June 7, 2011 accident. By order dated June 3, 2014, the Supreme Court granted, on default, a motion by 21st Century Advantage Insurance Company and 21st Century Security Insurance Company for a default judgment against the provider and assignor herein and “ordered, adjudged and decreed” that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had “no duty to provide coverage” for the accident at issue (occurring on June 7, 2011); that the applicable insurance policy is null and void with respect to that accident; [*2]and that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company are “not obligated to provide coverage for no-fault reimbursement based upon the failure of the defendants [in the Supreme Court action] to verify their claims.” A Supreme Court judgment, dated July 20, 2017, set forth the same declaration as stated in the June 3, 2014 order. Relying upon the Supreme Court’s order and judgment, defendant moved in the Civil Court for summary judgment dismissing the complaint. Plaintiff opposed the motion on the grounds that there is no collateral estoppel or res judicata effect from the Supreme Court’s order and judgment, and that defendant had failed to establish a prima facie case. Plaintiff also cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court, entered October 15, 2018, as denied defendant’s motion.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court declaratory judgment, entered on default, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 304; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d 1).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

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

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

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff had failed to respond to defendant’s timely requests for additional verification.

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

Plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

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

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

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

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

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

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

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

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

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

Accordingly, I would grant summary judgment to defendant.

[*1]

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

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

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

Ordered that the order is affirmed, with costs.

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

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

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

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

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

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

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

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

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

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

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

WESTON and ALIOTTA, JJ., concur.

PESCE, P.J., taking no part.