Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent. Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 18, 2015 and May 26, 2016, respectively. The order entered May 18, 2015 granted the branch of defendant’s motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross motion, in effect, to amend the complaint. The order entered May 26, 2016 denied plaintiff’s motion for leave to reargue.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered May 18, 2015 is affirmed, with $25 costs; and it is further,

ORDERED that the appeal from the order entered May 26, 2016 is dismissed, as no appeal lies from an order denying reargument (see Andre v City of New York, 47 AD3d 605 [2008]; DeFreitas v Board of Educ. of City of Mount Vernon Dist. No. 416, 129 AD2d 672 [1987]).

Prior to the commencement of this action by a provider to recover assigned first-party no-fault benefits arising out of injuries allegedly sustained by its assignor in a motor vehicle accident on August 3, 1999, the provider had submitted claims, involving the same assignor and the same motor vehicle accident, to arbitration. The arbitrator found that the provider had failed to prove its standing to sue, as the provider’s proof was insufficient to establish that the signers of the claim forms were the provider’s employees rather than independent contractors. The arbitrator’s award, dated September 10, 2003, dismissed the claim “without prejudice to the Applicant’s right [*2]to initiate a new arbitration with supplementary proofs.” There was no new arbitration or any application to vacate or modify the award.

On March 8, 2005, plaintiff commenced the instant action in the Civil Court. Defendant answered, asserting, as an affirmative defense, that plaintiff had previously elected to arbitrate its claims. Plaintiff filed a notice of trial in 2008, but, upon defendant’s motion, the Civil Court vacated the notice of trial. In 2014, the Civil Court granted a motion by plaintiff to restore the action to the trial calendar and directed plaintiff to file a new notice of trial. Defendant moved in the same year to dismiss the complaint, pursuant to CPLR 3211 (a) (3) and (5) or, in the alternative, for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims, as plaintiff, prior to commencing this action, had elected to arbitrate them. In opposition, plaintiff argued that defendant’s motion was untimely, and that, contrary to defendant’s contention, plaintiff’s action was not barred, as there was no indication that plaintiff was litigating the same bills that had been submitted to arbitration and because the merits of the claims had not been reached in arbitration. Plaintiff cross-moved, in effect, to amend the amount sought in the complaint. By order entered May 18, 2015, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross motion, on the ground that plaintiff had elected arbitration as the forum for resolution of its claims. Plaintiff’s subsequent motion for leave to reargue was denied by order entered May 26, 2016.

Plaintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident (see Roggio, 66 NY2d 260; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). There is no merit to plaintiff’s argument that defendant’s motion should have been denied because defendant failed to demonstrate that the bills which are the subject of the present action were the same ones which had been submitted to arbitration. “[A] claimant disappointed in the pursuit of medical expense reimbursement in arbitration cannot, on the next rejected bill arising from the same accident, then look to the courts” (Roggio, 66 NY2d at 263). We find that the branch of defendant’s motion seeking summary judgment was timely, as plaintiff’s first notice of trial had been vacated (see Farrington v Heidkamp, 26 AD3d 459 [2006]), and defendant made its motion within 120 days after plaintiff had filed its second notice of trial upon the direction of the Civil Court (see CPLR 3212 [a]). Plaintiff’s argument, that defendant had waived its Roggio defense, is not properly before us, as it is raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider it. Upon the record presented, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Accordingly, the order entered May 18, 2015 is affirmed and the appeal from the order entered May 26, 2016 is dismissed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant, defendant moved for summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 on the ground that that portion of the action is premature because plaintiff had failed to provide requested verification. Plaintiff appeals from so much of an order of the Civil Court entered January 27, 2016 as granted that branch of defendant’s motion.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that so much of the complaint as sought to recover the sum of $3,399.51 is premature because it had properly mailed the verification requests at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff further argues, the affidavit submitted by plaintiff in [*2]opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether that portion of the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.

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

Decided on November 2, 2018

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 16, 2015. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 16, 2015, the Civil Court denied defendant’s motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was “Defendant’s practices and procedures regarding its receipt of mail in Atlanta, Georgia.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff does not challenge that defendant demonstrated its prima facie entitlement to summary judgment, but rather argues that plaintiff raised a triable issue of fact in opposition. However, as plaintiff’s argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment. We further note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

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

Decided on November 2, 2018

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

Decided on November 2, 2018

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

Gary Tsirelman, P.C. (Joseph Padrucco and Devon Christian of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Marisa Villafana-Jones of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered March 10, 2017. The order granted 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 denied.

After plaintiff filed a notice of trial in this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion arguing, among other things, that the motion was untimely. In reply papers, defendant conceded that its motion was untimely and, for the first time, sought to provide good cause for its untimely filing of the motion. By order entered March 10, 2017, the Civil Court found “defendant’s motion to be timely,” and granted the motion.

CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). On appeal, as in the court below, defendant concedes that it moved for summary judgment more than 120 days after the notice of trial had been filed. Defendant argues that it had been unaware that the motion was late until it read plaintiff’s opposition papers, after which it submitted reply papers in which it sought to provide good cause for the late motion. Since defendant failed to demonstrate, in its moving papers, good cause for not filing its motion within the time frame of CPLR 3212 (a), the Civil Court improvidently exercised its discretion in entertaining defendant’s motion after considering the good cause arguments defendant raised for the first time in its reply papers (see [*2]Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]). We note that “[a]rguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply” (Gluck v New York City Tr. Auth., 118 AD3d 667, 668 [2014]). In the case at bar, however, “there is no indication that plaintiff was afforded an opportunity to submit a surreply” (Gottlieb v Wynne, 159 AD3d 799, 801 [2018]).

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

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

Law Office of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 18, 2014, deemed from a judgment of that court entered November 12, 2015 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 18, 2014 order denying defendant’s motion for summary judgment dismissing the complaint and granting the branches of plaintiff’s cross motion seeking summary judgment and costs, awarded plaintiff the principal sum of $3,793.02 and, among other things, “other costs” in the amount of $250.

ORDERED that the judgment is reversed, without costs, so much of the order entered June 18, 2014 as granted the branches of plaintiff’s cross motion seeking summary judgment and costs is vacated, and those branches of plaintiff’s cross motion are denied.

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 duly scheduled independent medical examinations, and plaintiff cross-moved for summary judgment and for costs and attorney’s fees. By order entered June 18, 2014, the Civil Court denied defendant’s motion and granted the branches of plaintiff’s cross motion seeking summary judgment and costs. A judgment awarding plaintiff the principal sum of $3,793.02 and, among other things, “other costs” in the amount of $250, was entered on November 12, 2015. Plaintiff’s appeal from the June 18, 2014 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

As defendant’s moving papers failed to establish, as a matter of law, that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms, the Civil Court properly determined that defendant was not entitled to summary judgment dismissing the complaint.

We further find that plaintiff’s cross motion papers did not establish either that defendant had failed to timely deny the claims 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 § 5102 [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]). As plaintiff failed to establish its prima facie case, the branch of its cross motion seeking summary judgment should have been denied. We note that plaintiff failed to demonstrate that defendant or its counsel had engaged in sanctionable conduct (see 22 NYCRR 130-1.1 [c]). Consequently, we also deny the branch of plaintiff’s cross motion seeking costs.

Accordingly, the judgment is reversed, so much of the order entered June 18, 2014 as granted the branches of plaintiff’s cross motion seeking summary judgment and costs is vacated, and those branches of plaintiff’s cross motion are denied.

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

[*1] (July 18, 2018)

Russell Friedman, Lake Success, NY (Dara C. Goodman of counsel), for appellant.

Peter C. Merani, P.C., New York, NY (Eric M. Wahrburg of counsel), for respondent.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered October 19, 2016. The order denied the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint and pursuant to CPLR 2004 and 3012 (d) to extend its time to answer the complaint.

Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint and pursuant to CPLR 2004 and 3012 (d) to extend its time to answer the complaint is granted.

This action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits arises from a motor vehicle accident that occurred on July 28, 2013. Jude M. Blanc allegedly was injured in the accident, and he underwent hip surgery at the defendant hospital. The defendant submitted a claim to the plaintiff insurer for no-fault benefits for the surgery and related care. The plaintiff denied the claim.

The defendant submitted the matter to arbitration. The arbitrator determined that the defendant was entitled to no-fault compensation in the amount of $16,134.83, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

On January 29, 2015, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of the defendant’s claims for recovery of no-fault benefits. The plaintiff then moved for leave to enter a default judgment because the defendant failed to timely appear or answer the complaint. In an order entered April 21, 2015, the Supreme Court granted the plaintiff’s motion for leave to enter a default judgment. On June 8, 2015, the court entered a default judgment.

In July 2016, the defendant moved pursuant to CPLR 5015 (a) (1) to vacate its default, and pursuant to CPLR 2004 and 3012 (d) to extend its time to answer the complaint. In an order entered October 19, 2016, the Supreme Court denied the motion, and the defendant appeals.

The defendant’s motion was timely made (see CPLR 5015 [a] [1]; 2103 [b] [2]). A defendant seeking to vacate a 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]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; EMC Mtge. Corp. v Toussaint, 136 AD3d 861, 862 [2016]; Lane v Smith, 84 AD3d 746, 748 [2011]). Here, the defendant demonstrated a reasonable excuse for its default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Matter of Williams v Williams, 148 AD3d 917, 918 [2017]; Matter of Gasby v New York City Hous. Auth./Walt Whitman Houses, 142 AD3d 1018, 1019 [2016]; Youth v Grant, 126 AD3d 893, 893 [2015]). Furthermore, the plaintiff did not assert before the Supreme Court that the defendant’s delay in answering resulted in prejudice, the record does not reflect that the defendant acted willfully, and public policy favors resolution on the merits (see Matter of Gasby v New York City Hous. Auth./Walt Whitman Houses, 142 AD3d at 1019; Youth v Grant, 126 AD3d at 894; Curran v Graf, 13 AD3d 409 [2004]).

Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint and pursuant to CPLR 2004 and 3012 (d) to extend its time to answer the complaint. Chambers, J.P., Austin, Miller and Maltese, JJ., concur.

Decided on July 13, 2018

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