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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 28, 2016, deemed from a judgment of that court entered December 27, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 28, 2016 order, which, in effect, converted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) into a motion for summary judgment dismissing the complaint, and thereupon denied the motion, and granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,563.01.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 28, 2016 is vacated, defendant’s motion for, in effect, 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, after issue was joined, to dismiss the complaint pursuant to CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant argued [*2]that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an affirmation by its counsel, who made unsupported assertions that, among other things, defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). By order entered November 28, 2016, the Civil Court denied defendant’s motion to dismiss the complaint and granted plaintiff’s cross motion for summary judgment. Defendant’s appeal from the November 28, 2016 order is deemed from a judgment of that court entered on December 27, 2016 pursuant to the order (see CPLR 5501 [c]), awarding plaintiff the principal sum of $1,563.01.

Defendant’s moving papers establish that it served an answer in which it interposed the defense of lack of personal jurisdiction as an affirmative defense (CPLR 3211 [e]), and therefore that the defense was not waived. The Civil Court properly, in effect, converted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) into a motion for summary judgment dismissing the complaint for lack of personal jurisdiction, as plaintiff cross-moved for summary judgment and “the parties submitted facts and arguments clearly indicating that they were deliberately charting a summary judgment course” (Okeke v Momah, 132 AD3d 648, 648 [2015] [internal quotation marks omitted]; see also Mihlovan v Grozavu, 72 NY2d 506 [1988]).

Defendant made a prima facie showing that personal jurisdiction had not been obtained over it (see Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co., 63 Misc 3d 144[A], 2019 NY Slip Op 50635[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Lida’s Med. Supply, Inc. v American Ind. Ins. Co., 63 Misc 3d 137[A], 2019 NY Slip Op 50502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova v American Ind. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “In opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists” (Hopstein v Cohen, 143 AD3d 859, 860 [2016] [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

Plaintiff’s contention that Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (137 AD3d 1270 [2016]) (Nova) stands for the proposition that New York courts might have personal jurisdiction over defendant lacks merit. In Nova, the issue was limited to whether defendant could be compelled to arbitrate a claim for first-party no-fault benefits. However, as the Appellate Division, Second Department, had previously noted, “[a]t this pre-arbitration stage, [*3]the issue is not whether New York courts have jurisdiction over AIIC, but whether the arbitrator has authority under the terms of the insurance contract to award no-fault benefits to the appellants” and “[w]hile personal jurisdiction is required for the exercise of the state’s judicial power over a party, arbitration is a form of dispute resolution almost wholly independent of the court system” (American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 762-763 [2013]).

To the extent plaintiff argues that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]), this argument is not properly before us, as plaintiff’s contention that it needs discovery “regarding the nature and extent of [defendant’s] relationship with parent/subsidiary companies and, in particular, the extent of activity in New York State by these companies” is raised by plaintiff for the first time on appeal (see Copp v Ramirez, 62 AD3d 23 [2009]). Even if the argument were properly before us, neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the “tangible evidence” (Mandel v Busch Entertainment Corp., 215 AD2d 455, 455 [1995]) necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not “frivolous” (Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). Thus, plaintiff did not make a “sufficient start” (id.) by showing that essential jurisdictional facts might exist to warrant discovery on the issue of personal jurisdiction over defendant (see Compas Med., P.C.,47 Misc 3d 134[A], 2015 NY Slip Op 50481[U]).

Accordingly, the judgment is reversed, the order entered November 28, 2016 is vacated, defendant’s motion for, in effect, summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 16, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $30 costs; and it is further,

ORDERED that, on the court’s own motion, counsel for the respective parties and Damin J. Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, LLC and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk of this court and serving one copy of same on each other on or before January 3, 2020; and it is further,

ORDERED that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon counsel for the respective parties and Damin J. Toell, Esq.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an affirmation by its counsel, who made unsupported assertions that, among other things, defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff appeals, as limited by its brief, from so much an order of the Civil Court entered November 16, 2017 as granted defendant’s motion to dismiss the complaint.

Contrary to plaintiff’s contention, defendant made a prima facie showing that personal jurisdiction had not been obtained over it (see Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co., 63 Misc 3d 144[A], 2019 NY Slip Op 50635[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Lida’s Med. Supply, Inc. v American Ind. Ins. Co., 63 Misc 3d 137[A], 2019 NY Slip Op 50502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova v American Ind. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “In opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists” (Hopstein v Cohen, 143 AD3d 859, 860 [2016] [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

Plaintiff’s contention that Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (137 AD3d 1270 [2016]) (Nova) stands for the proposition that New York courts might have personal jurisdiction over defendant lacks merit. In Nova, the issue was limited to whether defendant could be compelled to arbitrate a claim for first-party no-fault benefits. However, as the Appellate Division, Second Department, had previously noted, “[a]t this pre-arbitration stage, the issue is not whether New York courts have jurisdiction over AIIC, but whether the arbitrator has authority under the terms of the insurance contract to award no-fault benefits to the appellants” and “[w]hile personal jurisdiction is required for the exercise of the state’s judicial power over a party, arbitration is a form of dispute resolution almost wholly independent of the [*2]court system” (American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 762-763 [2013]).

To the extent plaintiff argues that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]), this argument is not properly before us, as plaintiff’s contention that it needs discovery “regarding the nature and extent of [defendant’s] relationship with parent/subsidiary companies and, in particular, the extent of activity in New York State by these companies” is raised by plaintiff for the first time on appeal (see Copp v Ramirez, 62 AD3d 23 [2009]). Even if the argument were properly before us, neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the “tangible evidence” (Mandel v Busch Entertainment Corp., 215 AD2d 455, 455 [1995]) necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not “frivolous” (Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). Thus, plaintiff did not make a “sufficient start” (id.) by showing that essential jurisdictional facts might exist to warrant discovery on the issue of personal jurisdiction over defendant (see Compas Med., P.C.,47 Misc 3d 134[A], 2015 NY Slip Op 50481[U]).

We conclude that sanctions may be warranted for the conduct of The Rybak Firm, PLLC and Damin J. Toell, Esq., as their conduct appears to be frivolous (see Flushing Expo, Inc. v New World Mall, LLC, 116 AD3d 826 [2014]; Ram v Torto, 111 AD3d 814 [2013]). As relevant here, frivolous conduct includes the assertion of arguments that are “completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c] [1]). Here, although the order appealed from expressly stated that plaintiff’s arguments and the “evidence” upon which plaintiff relied had previously been considered and rejected by this court and that plaintiff’s remaining arguments were either contrary to a prior decision by the Appellate Division, Second Department, or predicated upon “speculative factual arguments,” plaintiff’s appellate brief does not appear to mention, let alone address, the prior decisions of this court or of the Appellate Division which may have rendered plaintiff’s appellate arguments frivolous.

In light of the foregoing, the order, insofar as appealed from, is affirmed, and, on the court’s own motion, counsel for the respective parties and Damin J. Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, PLLC, and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk of this court and serving one copy of same on each other on or before January 3, 2020.

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

Decided on December 6, 2019

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

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 31, 2016. The judgment, upon the parties’ stipulation, among other things, that plaintiff had established a prima facie case and, insofar as appealed from as limited by the brief, upon the denial of defendant’s request for an adjournment of trial, awarded plaintiff the principal sum of $923.20.

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

Plaintiff commenced this action on May 13, 2014 to recover assigned first-party no-fault benefits pertaining to an accident which had occurred on November 16, 2013. Upon defendant’s failure to answer the complaint or appear in the action, the Civil Court granted, on default, plaintiff’s motion for the entry of a default judgment. On February 13, 2015, following a motion by defendant to vacate the default, the parties entered into a two-attorney stipulation, which provided, among other things, that the “default judgment” was vacated, that the parties had established their respective prima facie cases, and that “there shall be no further motion practice [and] the case is ready to proceed to trial.” On July 22, 2015, the insurer commenced a declaratory judgment action in Supreme Court, New York County, against the present provider and its assignor, among other parties, involving a November 16, 2013 accident. On November 4, 2015, the Civil Court denied defendant’s application for an order to show cause seeking to stay the action in the Civil Court “pending the resolution” of the declaratory judgment action. [*2]Defendant applied again for the same relief on January 5, 2016, and the Civil Court (Katherine A. Levine, J.) denied the opposed motion on the ground that defendant and plaintiff had “executed a stipulation . . . agreeing that the matter shall proceed to trial with no further motion practice to be had.” At a nonjury trial which followed, the Civil Court (Reginald A. Boddie, J.) was advised of the parties’ stipulation and, after oral argument, denied defendant’s application for an adjournment. When defendant’s attorney stated that defendant was not prepared to proceed, the court granted plaintiff’s motion for the entry of a judgment in plaintiff’s favor. Defendant appeals from the judgment, which awarded plaintiff the principal sum of $923.20, contending on appeal solely that the Civil Court improvidently exercised its discretion in denying defendant’s application to adjourn the trial pending a determination by the Supreme Court of defendant’s motion for a declaratory judgment.

For the reasons stated in XVV, Inc., as Assignee of Camara, Mahamadou v Warner Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-804 K C], decided herewith), the judgment, insofar as appealed from, is affirmed.

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

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gina M. Spiteriof counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 3, 2017. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

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

Plaintiff contends that the Civil Court should not have considered defendant’s motion for summary judgment dismissing the complaint because the motion was filed more than 120 days after the notice of trial had been filed. A motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and service of a motion upon a party’s attorney by mail is completed upon mailing (see CPLR 2103 [*2][b] [2]). It is uncontroverted that the notice of trial was filed on August 24, 2016. Consequently, the 120-day period expired on December 22, 2016. Since the affidavit of service of defendant’s motion states that defendant mailed the motion to plaintiff’s attorney on December 13, 2016, defendant’s motion for summary judgment dismissing the complaint was timely (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]).

Contrary to plaintiff’s contention, the affidavits submitted by defendant established its standard office practices and procedures for its mailing of denial of claim forms, and that the denials in the case at bar had been properly and timely mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, defendant’s affidavits demonstrated that it had twice duly demanded an examination under oath from the assignor, that the assignor had twice failed to appear, and that defendant had denied the claims based on the assignor’s failure to appear (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 31, 2016. The judgment, upon the parties’ stipulation, among other things, that plaintiff had established a prima facie case and, insofar as appealed from as limited by the brief, upon the denial of defendant’s request for an adjournment of trial, awarded plaintiff the principal sum of $2,484.68.

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

Plaintiff commenced this action on May 13, 2014 to recover assigned first-party no-fault benefits pertaining to an accident which had occurred on November 16, 2013. Upon defendant’s failure to answer the complaint or appear in the action, the Civil Court granted, on default, plaintiff’s motion for the entry of a default judgment. On February 13, 2015, following a motion by defendant to vacate the default, the parties entered into a two-attorney stipulation, which provided, among other things, that the “default judgment” was vacated, that the parties had established their respective prima facie cases, and that “there shall be no further motion practice [and] the case is ready to proceed to trial.” On July 22, 2015, the insurer commenced a declaratory judgment action in Supreme Court, New York County, against the present provider and its assignor, among other parties, involving a November 16, 2013 accident. On November 4, 2015, the Civil Court denied defendant’s application for an order to show cause seeking to stay the action in the Civil Court “pending the resolution” of the declaratory judgment action. [*2]Defendant applied again for the same relief on January 5, 2016, and the Civil Court (Katherine A. Levine, J.) denied the opposed motion on the ground that defendant and plaintiff had “executed a stipulation . . . agreeing that the matter shall proceed to trial with no further motion practice to be had.” At a nonjury trial which followed, the Civil Court (Reginald A. Boddie, J.) was advised of the parties’ stipulation and, after oral argument, denied defendant’s application for an adjournment. When defendant’s attorney stated that defendant was not prepared to proceed, the court granted plaintiff’s motion for the entry of a judgment in plaintiff’s favor. Defendant appeals from the judgment, which awarded plaintiff the principal sum of $2,484.68, contending on appeal solely that the Civil Court improvidently exercised its discretion in denying defendant’s application to adjourn the trial pending a determination by the Supreme Court of defendant’s motion for the entry of a declaratory judgment.

“The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ ” (Matter of Steven B., 6 NY3d 888, 889 [2006], quoting Matter of Anthony M., 63 NY2d 270, 283 [1984]; see Dune Deck Owners Corp. v J.J. & P. Assoc. Corp., 85 AD3d 1091 [2011]; Diamond v Diamante, 57 AD3d 826, 827 [2008]). In reviewing a motion for an adjournment, a court must consider all relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted and the length of the pendency of the proceeding (see Hawes v Lewis, 127 AD3d 921 [2015]; Diamond, 57 AD3d at 827).

In the case at bar, the parties had settled defendant’s motion to vacate the “default judgment” by stipulating, among other things, that there would be no further motion practice. Nonetheless, defendant subsequently moved for a stay in the Civil Court, which motion was denied on the ground that the stipulation barred motion practice. Consequently, as the outcome of the Supreme Court action was unknown at the time defendant sought an adjournment in the Civil Court, and, upon consideration of all the surrounding facts in this case, including the parties’ agreement by stipulation, we find that it was not an improvident exercise of discretion for the trial court to deny defendant’s request for an adjournment.

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

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

Peter C. Merani, P.C. (Adam Waknine of counsel), for appellant. Gary Tsirelman, P.C. (Selina Chin, David M. Gottlieb and Doug Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 4, 2017. The order denied defendant’s motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered July 27, 2016 upon defendant’s failure to appear or answer 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, defendant appeals from an order of the Civil Court, entered December 4, 2017, which denied defendant’s motion, pursuant to CPLR 5015 (a) (1), to, among other things, vacate a judgment of that court entered July 27, 2016 upon defendant’s failure to appear or answer the complaint, finding that defendant had failed to establish a reasonable excuse for its default.

The affidavit of service indicates that defendant was served on May 13, 2016 by delivery of the summons and complaint to an individual at defendant’s offices who was known to the process server to be defendant’s employee authorized to accept service of process. The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving 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 [*2][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 based on excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). 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., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

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

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered May 16, 2017. The order granted defendant’s 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant 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, in the event plaintiff fails to file proof of such an application to the Workers’ Compensation Board with the court within 90 days of the date of the court’s order, granting defendant summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been injured during the course of his employment. By order entered May 16, 2017, the Civil Court granted defendant’s 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 [*2]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 determination 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]). Consequently, the Civil Court properly granted defendant’s motion to hold the action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

Accordingly, the order is affirmed.

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

Decided on November 29, 2019

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

Decided on November 29, 2019

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