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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decided on June 12, 2020

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew Sarles of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 7, 2018. The order denied plaintiff’s motion to, in effect, vacate an order of that court entered February 27, 2017 granting, without written opposition by plaintiff, defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

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

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

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

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

Decision Date: June 12, 2020

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

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

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

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

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

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

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

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered June 29, 2018. The order granted defendant’s motion (1) to vacate an order of that court (Michael Gerstein, J.) entered November 29, 2017 granting plaintiff’s unopposed motion for the entry of a judgment based on defendant’s alleged failure to answer the complaint, (2) to, in effect, vacate the judgment entered March 1, 2018 pursuant to the November 29, 2017 order, and (3) upon such vacatur, to grant defendant summary judgment dismissing the complaint.

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

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

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

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

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

Accordingly, the order is affirmed.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 11, 2018. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

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

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

Accordingly, the order is affirmed.

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

Paul Kenny

[*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.