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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered May 8, 2015. The order granted 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). In opposition, plaintiff argued, among other things, that the motion should be denied pursuant to CPLR 3212 (f) because plaintiff needed discovery in order to oppose the motion. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.

Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Plaintiff’s contention that defendant’s motion should be denied as premature on the ground that discovery was not yet complete (see CPLR 3212 [f]) lacks merit. ” ‘A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue’ ” (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006], quoting Cruz v Otis El. Co., 238 AD2d 540, 540 [1997]). In the instant case, the record reflects that plaintiff first served its discovery demands, if at all, on February 23, [*2]2015, the same date on which plaintiff served its opposition to defendant’s motion. As defendant’s answer was served on March 21, 2014, plaintiff failed to demonstrate that it made a reasonable attempt during the intervening 11 months to obtain the discovery it alleges that it needs.

Equally devoid of merit is plaintiff’s assertion that defendant’s motion should have been denied because defendant failed to establish that it possessed a reasonable basis for requesting the EUOs of plaintiff. This court has held on multiple occasions that since the Appellate Division, Second Department, stated that an insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . ., that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claims” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]), an insurer “d[oes] not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law” (Barakat Med. Care, P.C. v Nationwide Ins. Co., 49 Misc 3d 147[A], 2015 NY Slip Op 51677[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 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]).

Accordingly, the order 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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Abrams, Cohen & Associates, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 30, 2016. 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 defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

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

Plaintiff correctly contends that defendant’s papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s further contention, plaintiff 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 denials of claim 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]). As a result, plaintiff’s motion seeking summary judgment was properly denied.

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

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