[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated October 10, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), dated February 6, 2017. The judgment, upon an order of the same court dated September 23, 2015, granting the petition, vacating the master arbitrator’s award dated October 10, 2014, and directing entry of a judgment in favor of the petitioner in the principal sum of $3,650 plus statutory interest, attorneys’ fees, and costs and disbursements, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $10,469.82.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the master arbitrator’s award dated October 10, 2014, is confirmed, and the order dated September 23, 2015, is modified accordingly.

V.S. Care Acupuncture, P.C. (hereinafter V.S.), is the assignee of a claim for no-fault benefits for treatment it rendered to Eric Pascal. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, V.S. submitted the claim to arbitration. The arbitrator denied V.S.’s claim, finding that the evidence established that V.S. was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). On appeal, a master arbitrator affirmed the original arbitrator’s award, finding that it was not arbitrary and capricious. V.S. then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, and entered a judgment in favor of V.S. in the amount of the claim for no-fault benefits plus statutory interest, attorneys’ fees, and costs and disbursements. Country-Wide appeals.

Contrary to the Supreme Court’s determination, V.S. failed to demonstrate any grounds for vacating the master arbitrator’s award. A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). Here, as explained in this Court’s decision and order in Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (176 AD3d 800 [2019] [decided herewith]), since the determination of the master arbitrator affirming the original arbitrator’s award had evidentiary support and was not irrational, it is not subject to vacatur by the courts (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869 [2018]), even if the master arbitrator committed an error of law (see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535 [2010]; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223-224; cf. Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]). Accordingly, the petition should have been denied and the master arbitrator’s award should have been confirmed. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated March 18, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated July 31, 2015. The judgment, upon an order of the same court dated April 2, 2015, granting the petition, vacating the master arbitrator’s award dated March 18, 2014, and confirming the original arbitrator’s award dated December 13, 2013, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $1,318.91.

Ordered that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10 [j] [4]).

Bay Needle Care Acupuncture (hereinafter Bay Needle) is the assignee of a claim for no-fault benefits for treatment it rendered to Kareem Edgar. The carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, and Bay Needle submitted the claim to arbitration. As relevant to this appeal, the arbitrator rejected Country-Wide’s contention that Bay Needle was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d 192 [2017], affd 33 NY3d 389 [2019]). The arbitrator stated that he found “no reasonable or credible evidence” establishing the defense, and he found in favor of Bay Needle. On Country-Wide’s appeal, a master arbitrator vacated the original arbitrator’s award and remitted the matter for a new hearing before a new arbitrator. The master arbitrator stated that the evidence of fraudulent incorporation presented by Country-Wide “was substantial.” Bay Needle commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, confirmed the original arbitrator’s award in favor of Bay Needle, and entered a judgment accordingly. Country-Wide appeals.

We agree with the Supreme Court that the master arbitrator exceeded his power in vacating the original arbitrator’s award after, in effect, weighing the evidence and coming to a different conclusion than the original arbitrator as to what that evidence proved (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). As such, we agree with the court’s determination to vacate the master arbitrator’s award and to confirm the original arbitrator’s award in favor of Bay Needle (see Matter of Jordan v Liberty Mut. Fire Ins. Co., 309 AD2d 803, 804 [2003]; cf. Matter of Jasser v Allstate Ins. Co., 77 AD3d 751, 752 [2010]).

Moreover, as Bay Needle contends and Country-Wide concedes, Bay Needle is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10 (j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [2018]; Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [2018]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706 [2017]). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated October 10, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Bernard J. Graham, J.), dated July 31, 2015. The judgment, upon an undated order of the same court granting the petition, vacating the master arbitrator’s award dated October 10, 2014, and remitting the matter to arbitration, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $625.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the master arbitrator’s award dated October 10, 2014, is confirmed, and the undated order is modified accordingly.

Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Hector Rojos. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator denied Acuhealth’s claim, finding, inter alia, that the evidence established that Acuhealth was fraudulently incorporated and thus not entitled to reimbursement under the No-Fault Law (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320-321 [2005]).

On appeal, a master arbitrator affirmed the original arbitrator’s award in favor of Country-Wide. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court determined that a prior Supreme Court determination involving the same parties was entitled to preclusive effect. Accordingly, the court granted Acuhealth’s petition, vacated the master arbitrator’s award, remitted the matter to arbitration, and awarded Acuhealth costs and disbursements in the sum of $625. Country-Wide appeals.

We disagree with the Supreme Court’s determination that Acuhealth was entitled to vacatur of the master arbitrator’s award on the ground of collateral estoppel. The prior decision on which the court relied merely stated that Acuhealth’s petition to vacate a master arbitrator’s award was granted, without indicating on what basis the petition was granted or what issues were being decided and in what manner. Under those circumstances, Acuhealth failed to establish that the issue on which it sought collateral estoppel effect in this proceeding was identical to an issue which was raised and necessarily decided in the prior proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Von Maack v Wyckoff Hgts. Med. Ctr., 140 AD3d 1055, 1056 [2016]).

Acuhealth failed to demonstrate any additional ground for vacating the master arbitrator’s award. “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). Notably, the master arbitrator’s review power is broader than that of the courts’ because it includes the power to review for errors of law (see id. at 211-212; 11 NYCRR 65-4.10 [a] [4]). In contrast, the courts “generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law, unless it is so irrational as to require vacatur” (Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982] [citations and internal quotation marks omitted]; see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]).

Here, since Country-Wide submitted evidence tending to support its fraudulent incorporation defense, it cannot be said that the determination of the master arbitrator affirming the original arbitrator’s award lacked evidentiary support. Nor can it be said that the determination to affirm the original arbitrator, who supported her determination with reasons based on the evidence, lacked a rational basis. Thus, even if it was an error of law to conclude that Country-Wide proved its defense as a matter of law (see Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]), the master arbitrator’s determination is not subject to vacatur by the courts on the mere basis of that error of law (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869 [2018]). Notably, this Court’s decision in Nationwide Affinity, which is contrary to the conclusion of the master arbitrator in this case, was not published until after the master arbitrator’s award was rendered. Moreover, Country-Wide submitted evidence in support of its defense which, while inadmissible, could be considered by the original arbitrator in this case, who, unlike a court deciding a summary judgment motion like that at issue in Nationwide Affinity, was not bound by the rules of evidence (see Matter of Fagan v Village of Harriman, 140 AD3d 868 [2016]).

Accordingly, the petition should have been denied and the master arbitrator’s award should have been confirmed. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 25, 2016, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Kathy J. King, J.), dated October 27, 2016. The judgment, upon an order of the same court dated October 26, 2016, granting the petition, vacating the master arbitrator’s award dated February 25, 2016, and confirming the original arbitrator’s award dated December 4, 2015, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $13,864.96.

Ordered that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10 [j] [4]).

Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Massiel Olsen. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator, upon refusing to consider Country-Wide’s defenses on the ground that Country-Wide’s submissions to the arbitrator were late, with no excuse for their lateness, found in favor of Acuhealth. On Country-Wide’s appeal, the master arbitrator vacated the award and issued a new award in favor of Country-Wide based on the defense that Acuhealth was fraudulently incorporated, which the original arbitrator had refused to consider on the ground that it was untimely submitted. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted Acuhealth’s petition, vacated the master arbitrator’s award in favor of Country-Wide, and confirmed the original arbitrator’s award in favor of Acuhealth. Country-Wide appeals.

An arbitrator acts within his or her discretionary authority by refusing to entertain late submissions (see Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC, 145 AD3d 644, 645 [2016]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017 [2009]; Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 756 [2005]). Here, in rejecting the original arbitrator’s proper exercise of his discretionary authority, and in passing, de novo, upon factual questions concerning the validity of Country-Wide’s defense that Acuhealth was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320-321 [2005]), the master arbitrator exceeded his power (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 230-231 [1982]; Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]). Accordingly, we agree with the Supreme Court’s determination to vacate the master arbitrator’s award and confirm the original arbitrator’s award in favor of Acuhealth.

Moreover, as Acuhealth contends and Country-Wide concedes, Acuhealth is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10 (j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [2018]; Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [2018]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706 [2017]). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose.

Acuhealth’s remaining contention is without merit. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for appellant.

Jaffe & Velazquez, LLP, New York, NY (Jean H. Kang of counsel), for respondent.

In a proceeding pursuant to CPLR article 75, the petitioner appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated March 1, 2018. The order denied the petition to vacate the award of a master arbitrator dated September 6, 2017.

Ordered that the order is affirmed, with costs.

The petitioner commenced a no-fault arbitration proceeding seeking to recover from the respondent insurer for acupuncture treatments provided to the petitioner’s assignor. After a no-fault arbitration hearing, an arbitrator determined that the respondent failed to establish its defenses, and awarded the petitioner the sum of $649.74, plus interest and an attorney’s fee award, in effect, pursuant to 11 NYCRR 65-4.6 (b). The petitioner appealed the arbitrator’s award to a master arbitrator, contending that the attorney’s fee award was incorrect as a matter of law. On September 6, 2017, the master arbitrator issued an award affirming the arbitrator’s award.

By notice of petition dated October 30, 2017, the petitioner sought to vacate the master arbitrator’s award pursuant to CPLR 7511. By order dated March 1, 2018, the Supreme Court denied the petition. The petitioner appeals.

The petitioner contends that the master arbitrator’s award must be vacated because an attorney’s fee should have been awarded pursuant to 11 NYCRR 65-4.6 (c), rather than 11 NYCRR 65-4.6 (b). The “role of the master arbitrator is to review the determination of the arbitrator to assure that the arbitrator reached his [or her] decision in a rational manner, [and] that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of the policy limits or in conflict with other designated no-fault arbitration proceedings” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981] [citations omitted]). This power “does not include the power to review, de novo, the matter originally presented to the arbitrator” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]).

Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it “was arbitrary and capricious, irrational or without a plausible basis” (Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996] [internal quotation marks omitted]; accord Matter of Steinauer [New York Cent. Mut. Fire Ins. Co.], 272 AD2d 771, 772 [2000]; see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211; Matter of Mercury Cas. Co. [Patient Care Assoc.], 134 AD3d 1204, 1205 [2015]).

Here, the master arbitrator determined that the petitioner was not entitled to an attorney’s fee award pursuant to 11 NYCRR 65-4.6 (c) because, among other things, it failed to support its attorney’s fee request with “documentation such as time sheets.” Inasmuch as an attorney fee award under subdivision (c) of 11 NYCRR 65-4.6 is set at an hourly rate, and the petitioner’s attorney submitted no time sheets or other documentation to establish how many hours he spent on the matter, the master arbitrator’s affirmance of the attorney’s fee award based upon 11 NYCRR 65-4.6 (b) was not irrational, or arbitrary and capricious. On questions of substantive law, the determination of the master arbitrator must be upheld if, as here, there is a rational basis for the determination (see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 759 [1980]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2002]).

Accordingly, we agree with the Supreme Court’s determination denying the petition.

The petitioner did not demonstrate its entitlement to an award of an attorney’s fee for this appeal, as the master arbitrator did not make a finding that the subject claims were “overdue” (Insurance Law § 5106 [a]; see Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co., 161 AD3d 1149, 1151 [2018]). Mastro, J.P., Rivera, Miller and Christopher, JJ., concur.

Decided on September 27, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of Cousnel), for appellant. Law Offices of Aloy O. Ibuzor (Janice A. Robinson 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 September 28, 2017. The order denied plaintiff’s motion to vacate an order of that court entered August 12, 2016 which, upon plaintiff’s failure to timely submit opposition to defendant’s prior motion for summary judgment dismissing the complaint, granted defendant’s prior motion.

ORDERED that the order entered September 28, 2017 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment. A stipulation signed by the parties on November 9, 2015 provided that opposition to defendant’s motion “must be served on or before” June 12, 2016, and “[a]ll papers served beyond the within deadline[] shall be deemed null and void.” It is uncontested that plaintiff’s opposition to defendant’s motion was served on July 13, 2016. By order entered August 12, 2016, the Civil Court granted defendant’s motion, noting that it was not considering plaintiff’s late opposition as it had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the August 12, 2016 order. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 denying plaintiff’s motion.

Where a plaintiff moves, pursuant to CPLR 5015 (a) (1), to vacate an order entered upon the plaintiff’s failure to oppose a motion, “the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Estrada v Selman, 130 AD3d 562, 562—563 [2015]; see also Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co., 54 Misc 3d 136[A], 2017 NY Slip Op 50118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d [*2]136[A], 2012 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In support of plaintiff’s motion to vacate, plaintiff’s attorney argued that due to law office failure, the “draft [of the opposition papers] was not . . . served on Defendant until one day after it was due to Defendant” (emphasis in the original). The record, however, indicates that plaintiff mailed its opposition papers to defendant on July 13, 2016, which was over a month past the stipulated due date of June 12, 2016. Under the circumstances, we find that plaintiff failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether plaintiff offered a potentially meritorious opposition to defendant’s motion (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914, 915 [2018]).

We note that, for the first time on appeal, plaintiff states that its counsel “misread the stipulation as providing a due date of July 12, 2016.” However, we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Decided on August 23, 2019

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

Gary Tsirelman, P.C. (Devon Riley Christian and David M. Gottlieb of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Edward M. Tobin and Adam Waknine of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), dated August 30, 2017. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered July 28, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by her brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court, entered July 28, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

At the outset, we note that 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 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the [*2]action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). Here, we find that the Civil Court improvidently exercised its discretion in determining that defendant had provided a reasonable excuse for its default. Defendant submitted an affidavit by the employee allegedly served. However, the employee did not indicate whether he had in fact been served or even that he could not recall whether he had been served. Instead, he stated only that “[o]ne of my duties is to act as the receptionist” at defendant’s Brooklyn location and then purported to describe defendant’s business practices and procedures in recording receipt of summonses and complaints in its computer system. However, defendant’s employee did not indicate whether he had employed those practices and procedures at the time in question. An affidavit submitted by another of defendant’s employees, its claim representative, asserted conclusorily that defendant had not been served with the summons and complaint, since it did not have a record in its computer system of having received process. These affidavits are insufficient to warrant the relief requested (see Pierre J. Renelique Physician, P.C., as Assignee of Jose Mercado v Allstate Ins. Co., ___ Misc 3d ___, 2019 NY Slip Op 29225 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

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

Decided on August 23, 2019

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