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

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered November 1, 2017. The order granted plaintiff’s motion for leave to reargue its opposition to defendant’s prior motion to dismiss the complaint pursuant to CPLR 3216, which prior motion had been granted in an order of that court entered May 9, 2017, and, upon reargument, vacated the order entered May 9, 2017 and denied defendant’s motion.

ORDERED that the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3216 based upon plaintiff’s failure to comply with a 90-day notice, which motion was granted by order of the Civil Court entered May 9, 2017. Plaintiff subsequently moved for leave to reargue its opposition to that motion, and, upon reargument, to deny defendant’s motion. Defendant appeals from an order of the Civil Court entered November 1, 2017 granting plaintiff’s motion.

The Civil Court correctly found in its May 9, 2017 order that plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse (see Faith Acupuncture, P.C. v Government Empls. Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50829[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pro Health Acupuncture, P.C. v GEICO Ins., 63 Misc 3d 136[A], 2019 NY Slip Op 50501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint [*2]pursuant to CPLR 3216 is adhered to.

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

Decision Date: July 12, 2019

Decided on July 12, 2019

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

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Anita Nissan Yehuda and Joseph Schwarzenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff’s “cross” motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.

ORDERED that the order is affirmed, without costs.

Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff “cross-moved,” pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s “cross” motion.

Pursuant to CPLR 306-b, service of a summons and complaint “shall be made within one hundred twenty days after the commencement of the action or proceeding” and “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (see also Leader v Maroney, Ponzini & Spencer, [*2]97 NY2d 95, 104-105 [2001]). ” ‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards” (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2009]; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). “An extension of time for service is a matter within the court’s discretion” (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 101).

In the case at bar, it is uncontroverted that plaintiff did not serve defendant with the summons and complaint until December 31, 2015, which was 47 days after the expiration of the CPLR 306-b 120-day time period for service. Plaintiff blames law office failure for this delay; however, plaintiff did not file its “cross” motion for an extension of the time to effectuate service of the summons and complaint upon defendant until about nine months after defendant had moved for dismissal of the complaint on the ground that the time for service had expired. Also, it is uncontroverted that plaintiff effectuated service on defendant after the six-year statute of limitations (see CPLR 213) had expired. In addition, plaintiff made no arguments, and annexed no documentation, regarding the underlying merit of its action.

Since plaintiff’s law office failure argument does not amount to a showing of good cause (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106), we next review plaintiff’s cross motion under an interest of justice standard (id.). Upon a careful analysis of the aforementioned factual setting of the case, we find that the Civil Court properly granted defendant’s motion to dismiss the complaint and denied plaintiff’s “cross” motion.

Accordingly, the order is affirmed.

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

Decided on July 12, 2019

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

Lawrence N. Rogak, LLP (Lawrence N. Rogak 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 (Harriet L. Thompson, J.), dated May 10, 2017. The order denied defendant’s 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 in the amount of $2,738.52, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

On appeal, defendant first argues that the Civil Court lacked “subject matter jurisdiction” because defendant does no business in New York. As the complaint seeks to recover a sum of less than $25,000, this action falls within the subject matter jurisdiction of the Civil Court (see CCA 202).

As to defendant’s second argument, there is no need to consider whether defendant’s claimed lack of contacts with New York might raise an issue of personal, rather than subject matter, jurisdiction, since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that [*2]the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at 649; Osserman v Osserman, 92 AD2d 932 [1983]).

Finally, even if, as defendant claims, it is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant did not demonstrate that its policy did not provide such coverage, and, therefore, defendant did not demonstrate its entitlement to judgment as a matter of law.

Accordingly, the order is affirmed.

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

Decided on July 12, 2019

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

Decided on July 12, 2019

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

Decided on July 12, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 15, 2017. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through tenth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the fifth, sixth, and eighth through tenth causes of action.

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 denied the branches of plaintiff’s motion seeking summary judgment on the first through tenth causes of action and granted the branches of defendant’s cross motion which sought summary judgment dismissing the fifth, sixth, and eighth through tenth causes of action on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification.

As to the fifth, sixth, and eighth through tenth causes of action, defendant demonstrated that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification. Thus, contrary to plaintiff’s contention, defendant demonstrated, prima facie, that the fifth, sixth, and eighth through tenth causes of action are premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

As to the first through fourth and seventh causes of action, contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of [*2]law, as the proof submitted in support of its motion failed to establish either that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

Decided on July 12, 2019

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