Decided on June 14, 2019

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

[*1]

Rubin & Nazarian (Goldberg, Miller & Rubin, P.C., New York, NY [Harlan R. Schreiber], of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP (Nicholas P. Hurzeler and Kristen Carroll of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate an arbitration award dated April 28, 2017, in which Hereford Insurance Company cross-petitioned to confirm the award, Hereford Insurance Company appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated March 30, 2018. The order granted the petition and denied the cross petition.

Ordered that the order is affirmed, with costs.

On January 28, 2014, a tractor owned by Cowan Systems, LLC (hereinafter Cowan), operated by Juan C. Aguilar, and insured by the petitioner, Zurich American Insurance (hereinafter Zurich), collided with the driver’s side of a parked vehicle occupied by Carlos Tapia and insured by the appellant, Hereford Insurance Company (hereinafter Hereford). Tapia, who allegedly sustained various injuries as a result of the accident, received $20,018.17 in no-fault benefits from Hereford.

In October 2014, Tapia commenced an action (hereinafter the action) against Cowan, Aguilar, and another defendant in the Supreme Court, Queens County, to recover damages for injuries allegedly sustained as a result of the accident. In or around December 2014, the action was removed to the United States District Court for the Eastern District of New York. The action proceeded to trial, and on December 15, 2016, a unanimous jury found that Tapia did not demonstrate by a preponderance of the evidence that the accident caused him to sustain injury.

Meanwhile, on or about November 24, 2015, via compulsory arbitration pursuant to Insurance Law § 5105, Hereford sought reimbursement from Zurich for the no-fault benefits paid to Tapia. At the arbitration hearing, Zurich submitted into evidence, inter alia, a copy of the jury verdict sheet from the action. Nonetheless, the arbitrator, upon determining that Zurich’s insured was 100 percent at fault for the accident for failure to yield and that Hereford had proven all of its damages, awarded Hereford $20,018.17.

Subsequently, Zurich commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending that the award was arbitrary and capricious insofar as the arbitrator failed to give preclusive effect to the jury verdict from the action. Hereford cross-petitioned to confirm the award, contending that there was evidentiary support and a rational basis for the award and that it was not improper for the arbitrator not to give preclusive effect to the jury verdict insofar as Hereford was not a party to the action. The Supreme Court granted Zurich’s petition and denied Hereford’s cross petition. Hereford appeals. We affirm.

“Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrators’ determination is subject to ‘closer judicial scrutiny’ under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties” (Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634 [internal quotation marks omitted]). “In addition, article 75 review questions whether the decision was rational or had a plausible basis” (id. [internal quotation marks omitted]).

The arbitration award herein was irrational and arbitrary and capricious insofar as the arbitrator failed to give preclusive effect to the jury’s determination that Tapia had failed to demonstrate by a preponderance of the evidence that the accident caused him to sustain injury (see Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644, 645 [2011]; Matter of State of N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269, 1271 [2007]). Significantly, the jury’s determination that Tapia did not demonstrate by a preponderance of the evidence that the accident caused him any injury precluded Hereford from recovering from Zurich via mandatory arbitration the amount of no-fault benefits paid by Hereford to Tapia with respect to the accident (see Insurance Law § 5105 [a]; see generally Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). Here, “the arbitrator failed to consider this provision of law in light of the jury’s verdict” (Matter of G.E.I.C.O. Gen. Ins. Co. v Canal Ins. Co., 189 Misc 2d 467, 469 [Civ Ct, Queens County 2001]; see New York City Tr. Auth. v GEICO Gen. Ins. Co., 46 Misc 3d 706, 709 [Civ Ct, NY County 2014]).

Contrary to Hereford’s contention, even though it was not a party to the action, Hereford, as subrogee, stands in place of Tapia, its subrogor, “such that it can be reasonably said that the two are in ‘privity,’ sufficient to bind [Hereford] by the prior judgment to which it was not a party of record” (Matter of G.E.I.C.O. Gen. Ins. Co. v Canal Ins. Co., 189 Misc 2d at 469, citing Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]).

Hereford’s remaining contention regarding Zurich’s failure to submit to the arbitrator and the Supreme Court a copy of the judgment in the action is improperly raised for the first time on appeal. Rivera, J.P., Austin, Roman and Duffy, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. With respect to the third, fifth and seventh causes of action, defendant claimed that the limits of the Florida insurance policy involved herein had been exhausted prior to defendant’s receipt of the claims underlying those three causes of action. With respect to the first, second, fourth and sixth causes of action, which constituted the remaining causes of action, defendant claimed that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule.

Defendant failed to establish with admissible evidence that Florida law applies and, thus, [*2]that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies, defendant relied upon a payment log to demonstrate that the policy limits had been exhausted; however, the affidavits submitted by defendant failed to establish that the annexed payment log constituted admissible evidence of exhaustion (see CPLR 4518; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the third, fifth and seventh causes of action.

The evidence proffered by defendant in support of the branches of its cross motion seeking summary judgment dismissing the first, second, fourth and sixth causes of action was sufficient to demonstrate that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s arguments which are made for the first time on appeal are not properly before us (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider them.

The branches of plaintiff’s motion seeking summary judgment on the third, fifth and seventh causes of action were properly denied, as the proof submitted by plaintiff failed to establish that those claims 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 denial of claim forms 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 is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied.

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

Goldberg Miller & Rubin (Harlan R. Schreiber of counsel), for appellant. The Rybak Firm, PLLC (Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 31, 2017. The judgment, entered pursuant to an order of that court entered August 2, 2017 granting plaintiff’s motion for the entry of a default judgment and denying defendant’s cross motion to dismiss the action, awarded plaintiff the principal sum of $1,511.04.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated August 2, 2017 is deemed a premature notice of appeal from the judgment entered October 31, 2017 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order dated August 2, 2017 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion to dismiss the action is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the action without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. In support of plaintiff’s motion for the entry of a default judgment, its counsel stated that [*2]defendant’s time to answer had expired. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant cross-moved to dismiss the action on the ground that plaintiff had failed to serve a summons and complaint within 120 days of the commencement of the action (see CCA 411). By order entered August 2, 2017, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from the order. A judgment was subsequently entered on October 31, 2017 awarding plaintiff the principal sum of $1,511.04. We deem defendant’s notice of appeal from the order to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

Proof that a defendant was properly served with process is a prerequisite to the entry of a default judgment against that defendant (see CPLR 3215 [f]; Cordero v Barreiro-Cordero, 129 AD3d 899 [2015]). “Service of the summons [is] complete . . . in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])” (Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [internal quotation marks omitted]). Here, the record fails to demonstrate that an acknowledgment of receipt was subscribed and affirmed as true under penalty of perjury by defendant (see CPLR 312-a [c]) and returned to plaintiff. Since plaintiff did not attempt another manner of service, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [e]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]; Dominguez v Stimpson Mfg. Corp.,207 AD2d 375 [1994]; Gateway Med., P.C. v Progressive Ins. Co., 30 Misc 3d 144[A], 2011 NY Slip Op 50336[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), and defendant’s cross motion to dismiss the action is granted (see CCA 411).

Accordingly, the judgment is reversed, the order entered August 2, 2017 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion to dismiss the action is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the action without prejudice.

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

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov 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 June 2, 2017. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin and granted the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin 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, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin and granted the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint. Contrary to the determination of the Civil Court, the proof submitted by defendant was sufficient to establish the proper mailing of the examination under oath (EUO) scheduling letters sent to Cobin (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). However, the affidavit of defense counsel’s legal assistant failed to establish that he possessed personal knowledge that Cobin had not appeared for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant failed to make a prima facie showing that it was entitled to summary judgment dismissing the claims submitted by plaintiff as assignee of Cobin. We note that the Civil Court did not improvidently exercise its discretion in considering the papers submitted by plaintiff in opposition to defendant’s motion, even though the opposition papers had been untimely served pursuant to the parties’ stipulation, as defendant was able to submit reply papers (see Hsu v Shields, 111 AD3d 674 [2013]; Kavakis v Total Care Sys., 209 AD2d 480 [1994]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit of plaintiff’s owner submitted in support of its cross motion failed to establish 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 denial of claim forms that were 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin is denied.

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

Decided on June 7, 2019

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

Glinkenhouse, Floumanhaft & Queen (Stephen J. Green of counsel), for appellant. Peter C. Merani, P.C. (Samuel Kamara of counsel), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 15, 2017. The judgment, entered pursuant to so much of a May 12, 2017 order of that court as granted the branch of a cross motion by defendant seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment,” awarded plaintiff interest only from August 23, 2016.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order entered May 12, 2017 as granted the branch of defendant’s cross motion seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment” is deemed a premature notice of appeal, on the ground of inadequacy, from the judgment (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 12, 2017 as granted the branch of defendant’s cross motion seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment” is vacated, that branch of defendant’s cross motion is denied, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits was settled in open court on August 2, 2007. Defendant did not pay the settlement amount, and a judgment was subsequently entered on June 21, 2016, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered May 12, 2017 as granted the branch of a cross motion by defendant seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment” by providing that such interest would be tolled until August 23, 2016, the date of the filing of a motion by plaintiff to recalculate the interest. We deem plaintiff’s notice of appeal from that part of the order to be a premature notice of appeal, on the ground of inadequacy, from the subsequently entered judgment (see CPLR 5520 [c]).

Plaintiff correctly argues that the Civil Court erred in staying interest from the date of the settlement of the action to August 23, 2016. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the judgment is reversed, so much of the order entered May 12, 2017 as granted the branch of defendant’s cross motion seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment” is vacated, that branch of defendant’s cross motion is denied, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

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

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY (Roman Kravchenko of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park, NY (Eli Shmulik of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered January 18, 2018. The order granted the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.

Ordered that the order is affirmed, with costs.

In December 2016, the plaintiff, a no-fault insurance carrier, commenced this action pursuant to Insurance Law § 5106 (c) for a de novo adjudication of a dispute regarding its denial of the defendant’s claim for no-fault insurance benefits for medical services rendered to its assignor. Prior thereto, an arbitrator had determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

After the defendant failed to timely appear or answer the complaint in this action, the plaintiff moved for leave to enter a default judgment. In an order entered March 13, 2017, the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment. The court subsequently issued a default judgment dated July 31, 2017.

Thereafter, in September 2017, the defendant moved pursuant to CPLR 5015 (a) (1) to vacate its default. The Supreme Court granted the motion, and the plaintiff appeals.

A defendant seeking to vacate its default pursuant to CPLR 5015 (a) (1) on the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]). Here, the defendant demonstrated a reasonable excuse for its default (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746). Moreover, although certain of the evidence submitted by the defendant to demonstrate a potentially meritorious defense was not in admissible form (see generally OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716 [2017]; King v King, 99 AD3d 672, 673 [2012]), the defendant demonstrated a potentially meritorious defense to the action by attaching to its moving papers copies of the arbitration award in which the arbitrator determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees, as well as copies of arbitration materials reflecting that the plaintiff had appealed the award to a master arbitrator, who affirmed the award. In light of the defendant setting forth evidence that it had previously prevailed before an arbitrator on the merits of its defense, the defendant demonstrated a potentially meritorious defense to the action (see Rosenzweig v Gubner, 2018 NY Slip Op 32393[U], *7-8 [Sup Ct, Kings County 2018]; Matter of Charny [Gliksman], 2002 NY Slip Op 40004[U], *11 [Sup Ct, Kings County 2002]; see generally Bevona v Blue Star Realty Corp., 264 AD2d 586, 587 [1999]; Lawyers Coop. Publ. v Scott, 255 AD2d 952, 952 [1998]; Simpson v Mal Serv. Corp., 205 AD2d 419, 419 [1994]). Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.

The plaintiff’s remaining contentions are without merit. Scheinkman, P.J., Dillon, Maltese and LaSalle, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), dated February 7, 2017. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on May 10, 2011. Defendant interposed an answer on June 29, 2011. On August 6, 2015, defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on August 10, 2015. By notice of motion dated March 11, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint on the ground that defendant had not been served with a notice of trial. In opposition to the motion, plaintiff stated that it had filed a notice of trial on November 23, 2016. It further argued that law office failure was the reason for the delay and that it had a meritorious cause of action. By order dated February 7, 2017, insofar as is relevant to this appeal, the Civil Court denied defendant’s motion, finding that plaintiff had established a “reasonable excuse” for its delay and a meritorious “defense” [sic].

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]) or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff filed a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). While a court, in its discretion, may accept a claim of law office failure as an excuse (see CPLR 2005), here, the affirmation submitted by plaintiff’s attorney in opposition to defendant’s motion did not provide a detailed and credible explanation of the law office failure that had caused the delay (see Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Bayshore Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 141[A], 2017 NY Slip Op 51121[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). Consequently, plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse. In view of the foregoing, it is unnecessary to consider whether plaintiff demonstrated the existence of a meritorious cause of action (see generally Levi v Levi, 46 AD3d 519 [2007]; Premier Surgical Servs., P.C., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

Law Offices of Buratti, Rothenberg & Burns (Leslie A. Emya, Jr. of counsel), for appellant. Gary Tsirelman, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 27, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). In support of the motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule the IMEs, which affidavit sufficiently demonstrated that the scheduling letters had been timely mailed to plaintiff’s assignor on August 19, 2011 and September 1, 2011, at a Van Siclen Avenue address (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affirmations and affidavits from medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims representative demonstrated that the denial of claim forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

In opposition, plaintiff’s counsel argued that the IME scheduling letters had been mailed to the wrong address because plaintiff’s bills, which were annexed to defendant’s moving papers, and the earliest of which was dated October 18, 2011, stated that plaintiff’s assignor’s address was on Chester Street. In reply, defendant submitted a copy of the NF-2 which was sworn to on July 29, 2011, and the police report from the July 17, 2011 accident. Both the police report and the sworn NF-2 stated that the assignor’s address was on Van Siclen Avenue. The Civil Court denied defendant’s motion for summary judgment dismissing the complaint, holding that plaintiff’s claims forms which were annexed to defendant’s moving papers raised an issue of fact as to the mailing of the IME scheduling letters and that defendant could not cure the defect in reply.

While a party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply, there is an exception to this general rule where, as here, the evidence is submitted in response to allegations raised for the first time in the opposition papers (see Central Mtge. Co. v Jahnsen, 150 AD3d 661 [2017]; Conte v Frelen Assoc., LLC, 51 AD3d 620 [2008]). As a result, the Civil Court erred when it held that the NF-2 and police report annexed to defendant’s reply papers could not be considered in support of defendant’s motion for summary judgment dismissing the complaint. Those documents established that, at the time the IME letters had been mailed to plaintiff’s assignor, the letters had been mailed to the assignor’s address as set forth in the sworn NF-2 and the police report, which was the only address known to defendant at that time.

Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, the Civil Court should have granted defendant’s motion for summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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