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

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

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

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

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

Accordingly, the order is affirmed.

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

Paul Kenny

Decided on May 1, 2020

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

Decided on May 1, 2020

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

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

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

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

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

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

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

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

Paul Kenny

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Richard T. Lau & Associates (Anna Peereira of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 17, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

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

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

Plaintiff’s cross-moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, the Civil Court properly denied plaintiff’s cross motion for summary judgment.

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

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

Paul Kenny

Decided on March 13, 2020

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

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

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

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

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

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

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

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 13, 2020

Footnotes

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

Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 3, 2018, and from a judgment of that court entered April 13, 2018. The order denied defendant’s motion to, among other things, vacate a judgment of that court entered July 22, 2016 upon defendant’s failure to appear or answer the complaint and granted plaintiff’s cross motion for costs and sanctions, pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1, to the extent of awarding plaintiff costs in the principal sum of $250. The April 13, 2018 judgment, entered pursuant to the January 3, 2018 order, awarded plaintiff the principal sum of $250 in costs.

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

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

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

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

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

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

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

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

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

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

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

Paul Kenny

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

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

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

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

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

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

Accordingly, the order is affirmed.

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

Decided on February 14, 2020

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