Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.

Per Curiam.

Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.

In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.

We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.

Per Curiam.

Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.

In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.

We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 28, 2023, under motion sequence number four, by defendant MV Contract Transportation Inc. (hereinafter MV Contract), for an order pursuant to CPLR 3215, granting a default judgment on the cross-claims that MV Contract has asserted against codefendants, Manage Transit Corp. (hereinafter MTC) and James J. Boynton, (hereinafter collectively the codefendants). The motion is unopposed.

Exhibits A-O

On October 2, 2020, GEICO Insurance Company (hereinafter GEICO or plaintiff) commenced the instant action against MV Contract, MTC and James J. Boynton by filing a summons and verified complaint with the Kings County Clerk’s office (KCCO). On January 11, 2021, the plaintiff filed an amended summons and verified complaint, changing the name of defendant from Manage Transport Corp. to Manage Transit Corp.

The amended verified complaint alleges the following salient facts. The plaintiff is a corporation authorized to engage in and carry out on an insurance business. Cletus J. Belfon, is the owner of a 2014 Jeep, bearing New York license plate GRG6773. Plaintiff insured the 2014 Jeep under policy number XXXXX,^[FN1] and the policy was in full force and effect on October 6, 2017. Defendant MTC leased a 2016 Ford Bus bearing New York Plate 30455BB from defendant MV Contract. On October 6, 2017, defendant James J. Boynton was operating this 2016 Ford Bus with permission and consent of defendant MTC.

On October 6, 2017, James J. Boynton was traveling westbound on Linden Blvd in the middle lane at or near its intersection with Berriman Street, Kings County, New York, when he changed lanes to the far left and struck the 2014 Jeep driven by Cletus J. Belfon on the front end and front passenger side. The collision was caused by the negligence of the defendants MV Contract, MTC, and James J. Boyton in the maintenance, operation, and control of the aforesaid bus. As a result of the accident, Cletus J. Belfon sustained serious personal injuries as defined by Insurance Law § 5102 (d) for which he received first party no fault benefits from the plaintiff. To date, plaintiff has issued $34,223.54 in no-fault payments on behalf of plaintiff’s Cletus J. Belfon. Plaintiff also alleges a cause of action for property damages in the amount of $5,629.42.

Defendants MTC and James J. Boton have neither answered the complaint nor appeared in the action.

On April 15, 2021, MV Contract filed a verified answer with cross-claims with the KCCO. The answer contains twelve affirmative defenses and four cross-claims asserted against codefendants MTC and James J. Boyton. The first cross-claim is for contribution; the second cross-claim is for common law indemnification; the third cross-claim is for contractual indemnification; and the fourth cross-claim is for breach of contract. The answer with cross-claims filed by MV Contract did not contain a demand for an answer to the cross-claims within the pleading.^[FN2]

MV Contract has moved pursuant to CPLR 3215 for leave to enter a default judgment against codefendants MTC and James J. Boyton based on their failure to appear or interpose an answer to the cross-claims MV Contract asserted against them.

CPLR 3215 provides in pertinent part as follows:

“(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other [*2]neglect to proceed, the plaintiff may seek a default judgment against him . . .

(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney.”

“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2d Dept 2011], citing CPLR 3215 [f]; Allstate Ins. Co. v Austin, 48 AD3d 720, 720 [2008]). “CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim . . . are to be set forth in an affidavit ‘made by the party’ (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736, [2d Dept 2009]; CPLR 3215 [f]).

“While counterclaims are not specifically mentioned anywhere in CPLR 3215, the statute’s legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints” (Giglio v NTIMP, Inc., 86 AD3d 301, 307 [2d Dept 2011], citing 5 NY Adv. Comm. Rep. A-476 [Advance Draft 1961]; 7 Weinstein-Korn-Miller, Civ. Prac. § 3215.08).

To obtain a default judgment against a party for not answering a pleading, the movant must demonstrate that the alleged defaulting party had an obligation to respond to the movant’s pleading and failed to do so. CPLR 3011 sets forth what pleadings there shall be and what they shall be called in an action. The general rule is that every pleading under the CPLR that contains a cause of action must, labels notwithstanding, be responded to with an answer or, in the case of a counterclaim, with a reply (see CPLR 3011).

A special rule exists for cross-claims. In 1977, CPLR 3011 was amended to its present form in which it calls for an answer to a cross-claim only if it is demanded in the cross-claim itself (see Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, C3011:8). Absent such a demand, the allegations of the cross-claim are deemed denied or avoided (id.). Furthermore, the denial that is deemed made under CPLR 3011 will prevent the party serving the cross-claim from obtaining a default judgment (see CPLR 3011; Connors, Practice Commentaries, C3011:8; see also Giglio v NTIMP, Inc., 86 AD3d 301 [2d Dept 2011]).

Here, MV Contract communicated to MTC and James J. Boyton that it was demanding an answer to the cross-claims that it had asserted against them. However, the demand for an answer was not made within the cross-claim itself, but rather, in a separate correspondence. Such a method would be ineffective to trigger an obligation to respond to the cross-claims.

Moreover, to support its application for a default judgment MV Contract was required to show that it properly served MTC and James J. Boyton with the cross-claims.

CPLR 3012 (a) provides that if a defendant has not appeared in the action, then any subsequent pleading must be served upon it in the same manner as a summons and complaint (CPLR 3012 [a]). However, if the party has already appeared, a pleading can be served in the manner provided for service of papers generally (id.). Papers may be served upon a party through their attorney of record via regular mail (CPLR 2103 [b]). This is the method through which interlocutory papers, all litigation papers beyond initial service of process, are served (see [*3]CPLR 2103; see Wachovia Mtge., FSB v Coleman, 170 AD3d 1244, 1245 [2d Dept 2019]).

A “defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR 320 [a]). Here, there is no claim or evidence that codefendants MTC and James J. Boyton appeared in the main action commenced by GEICO against them. Under these circumstances MV Contract’s answer with cross-claims was required to be served upon codefendants MTC and James J. Boyton in the manner of a summons and complaint. (see CPLR 3012, Connors, Prac Commentaries, C3012:7). James J. Boyton should have been served with the answer with cross-claims pursuant to CPLR 308. MV Contract had many options to serve process on MTC, including service on the New York State Secretary of State pursuant to Business Corporation Law § 306 (b) (1); another option was service pursuant to CPLR 311 (a) (1).

On April 15, 2021, MV Contract filed its answer with cross-claims with the KCCO under NYSCEF document number six. Although this method of service would have been proper pursuant to CPLR 2103 if the codefendants had appeared in the main action, it was improper under these circumstances. MV Contract also mailed its answer with cross-claims upon the codefendants in an effort to comply with CPLR 3215 (g). However, neither the filing of its answer with cross-claims with the KCCO nor the mailing of the pleadings to the codefendants satisfied the statutory requirement of effectuating service in the manner of a summons and complaint. MV Contract never properly effectuated service upon MTC and James J. Boyton and therefore their obligation to respond had never been triggered.

The motion by MV Contract Transportation Inc. for an order pursuant to CPLR 3215 granting a default judgment on the cross-claims asserted against codefendants, Manage Transit Corp. and James J. Boynton is denied.

The foregoing constitutes the decision and order of this Court.

Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber 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 (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings in favor of plaintiff.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action commenced by a provider on January 23, 2018 to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that the statute of limitations had expired, as the claims “became overdue 30 days from the date of receipt of the bills by” defendant. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant appeals from so much of an order of the Civil Court (Odessa Kennedy, J.) entered June 20, 2019 as denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings limiting the issues for trial to “defendant’s mailing of the denials and the defenses raised in those [*2]denials based on IME cut off and statute of limitation[s].” On appeal, defendant argues that the claims became overdue upon plaintiff’s receipt of the denial of claim forms mailed by defendant.

A review of the record (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]) reveals that defendant has admitted receiving the claim forms underlying the first and second causes of action on November 28, 2011. Since the instant action was commenced on January 23, 2018, plaintiff’s first and second causes of action were commenced after the statute of limitations had elapsed (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

However, contrary to defendant’s contention, the record does not establish, as a matter of law, that the third, fourth, fifth, and sixth causes of action were commenced after the statute of limitations had elapsed. Plaintiff mailed the claim forms underlying the third, fourth and fifth causes of action on December 28, 2011 and the claim forms underlying the sixth cause of action on January 22, 2012. If defendant received the earliest of these on January 3, 2012, as it claimed in its motion, then these causes of action were timely commenced on January 23, 2018 in the absence of proof that defendant issued denials that resulted in earlier accrual dates (see New [*3]Millennium Med. Imaging, P.C., 76 Misc 3d at 35). Thus, defendant did not establish on this record that these causes of action were commenced after the statute of limitations had elapsed.

Finally, defendant fails to articulate a sufficient basis to strike the Civil Court’s findings, in effect, pursuant to CPLR 3212 (g), limiting the issues for trial (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Decision Date: August 30, 2024

Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber 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 (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings in favor of plaintiff.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action commenced by a provider on January 23, 2018 to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that the statute of limitations had expired, as the claims “became overdue 30 days from the date of receipt of the bills by” defendant. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant appeals from so much of an order of the Civil Court (Odessa Kennedy, J.) entered June 20, 2019 as denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings limiting the issues for trial to “defendant’s mailing of the denials and the defenses raised in those [*2]denials based on IME cut off and statute of limitation[s].” On appeal, defendant argues that the claims became overdue upon plaintiff’s receipt of the denial of claim forms mailed by defendant.

The date by which an action must be commenced is determined by computing “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). A defendant asserting a statute of limitations defense must establish that the plaintiff commenced the action after the expiration of the statute of limitations (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). A no-fault cause of action against an insurance company must be commenced within six years after the cause of action accrues (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), and the cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008]; Mandarino, 37 AD3d 775; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Where an insurance company fails to pay or deny a no-fault claim, “[a] first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim” (DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), absent proof of any tolling of the 30-day claim determination period. However, “where a no-fault claimant receives a denial of claim form prior to the expiration of the claim determination period, the claimant’s right to recover upon that claim accrues upon its receipt of the denial” (New Millennium Med. Imaging, P.C. v GEICO Ins. Co., 76 Misc 3d 31, 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] [emphasis omitted]). While defendant’s claims representative alleged, in an affidavit that defendant submitted in support of its motion to dismiss the complaint, that the claims at issue were denied, the affidavit failed to establish when the denials were received by, or even mailed to, plaintiff (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), and there have been no allegations of any tolling. Thus, on the record before us, there is no basis to find that the causes of action accrued any earlier or later than 30 days after defendant received these claims (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

A review of the record (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]) reveals that defendant has admitted receiving the claim forms underlying the first and second causes of action on November 28, 2011. Since the instant action was commenced on January 23, 2018, plaintiff’s first and second causes of action were commenced after the statute of limitations had elapsed (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

However, contrary to defendant’s contention, the record does not establish, as a matter of law, that the third, fourth, fifth, and sixth causes of action were commenced after the statute of limitations had elapsed. Plaintiff mailed the claim forms underlying the third, fourth and fifth causes of action on December 28, 2011 and the claim forms underlying the sixth cause of action on January 22, 2012. If defendant received the earliest of these on January 3, 2012, as it claimed in its motion, then these causes of action were timely commenced on January 23, 2018 in the absence of proof that defendant issued denials that resulted in earlier accrual dates (see New [*3]Millennium Med. Imaging, P.C., 76 Misc 3d at 35). Thus, defendant did not establish on this record that these causes of action were commenced after the statute of limitations had elapsed.

Finally, defendant fails to articulate a sufficient basis to strike the Civil Court’s findings, in effect, pursuant to CPLR 3212 (g), limiting the issues for trial (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Michael J. Giordano of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Derefim B. Neckles, J.), dated June 14, 2023, as amended by an order of that court dated January 12, 2024. The order, as amended, denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, as amended, is modified by providing that defendant’s cross-motion for summary judgment dismissing the complaint is denied; as so modified, the order, as amended, is affirmed, without costs.

In November 2018, plaintiff John A. Nasrinpay commenced this action against defendant “National General Insurance Company” to recover assigned first-party no-fault benefits for services he rendered to his assignor, who was allegedly injured in an automobile accident on September 28, 2017. In September 2018, “National General Insurance Online, Inc.” and New South Insurance Company brought a declaratory judgment action in the Supreme Court, Nassau County, against John A. Nasrinpay and his assignor herein, Pouchon Cange, among other parties, pertaining to the September 28, 2017 accident and then moved for a default judgment against John A. Nasrinpay and Cange, among others, when they failed to answer or appear. Insofar as is relevant to this appeal, Nasrinpay opposed the motion and Cange did not. In a default judgment [*2]entered November 13, 2019 against Cange, among others, and a separate default judgment entered November 21, 2019 against Nasrinpay, among others, the Supreme Court declared that the September 28, 2017 incident was a “Staged Accident” and that “National General Insurance Online, Inc.” and New South Insurance Company were not obligated to pay claims for reimbursement submitted by Cange and Nasrinpay, respectively, arising from that incident.

Subsequently, Nasrinpay moved in the Civil Court for summary judgment, asserting that he had provided medically necessary services to his assignor, that the relevant claim form was mailed to defendant “National General Insurance Company,” and that defendant had failed to pay or deny the claim. Defendant cross-moved for summary judgment dismissing the complaint on the ground of res judicata or collateral estoppel, based on the aforementioned November 13 and 21, 2019 Supreme Court default declaratory judgments. Nasrinpay appeals from an order of the Civil Court dated June 14, 2023, as amended by an order dated January 12, 2024, denying his motion for summary judgment and granting defendant’s cross-motion for summary judgment dismissing the complaint based on the default declaratory judgments issued in the Supreme Court action.

The doctrine of res judicata generally requires a final adjudication of a claim on the merits and precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Moreover, collateral estoppel precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While “[a]n issue is not actually litigated if, for example, there has been a default” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), collateral estoppel may be applied to default judgments where the party against whom preclusion is sought appears in the prior action (see Miller v Falco, 170 AD3d 707 [2019]).

It was National General Insurance Online, Inc., not defendant herein, that obtained the default declaratory judgment relied upon by defendant for its preclusion argument and, therefore, there is no res judicata effect based on National General Insurance Online, Inc.’s default declaratory judgment against Nasrinpay. Indeed, there has been no attempt to demonstrate that defendant is, in fact, National General Insurance Online, Inc., or even that National General Insurance Online, Inc., and not defendant, is “the proper insurer,” requiring the dismissal of the complaint on that basis (see Quality Health Supply Corp., 2020 NY Slip Op 50996[U]). Moreover, as Nasrinpay did not appear in the declaratory judgment action, he did not have a full [*3]and fair opportunity to litigate whether the September 28, 2017 incident was a staged accident and, therefore, there is no collateral estoppel effect against him based on the default declaratory judgment (see Kaufman, 65 NY2d at 456-457). Thus, the Civil Court should have denied defendant’s cross-motion.

Nasrinpay’s motion for summary judgment was likewise properly denied, as Nasrinpay did not submit any evidence of an address for defendant, and thus failed to establish that the prescribed statutory claim form had been received by defendant (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). In any event, there is a triable issue of fact as to whether defendant was an insurer for this accident.

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

BUGGS, J.P., MUNDY and HOM, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 20, 2023. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross-motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel defendant to comply with its discovery demands. Thereafter, defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for three duly scheduled examinations under oath (EUOs) on May 17, 2019, June 17, 2019, and June 20, 2019, and plaintiff “cross-moved” for summary judgment. The Civil Court denied plaintiff’s motion to compel discovery as moot, and upon denying both parties’ “cross-motions” for summary judgment, made CPLR 3212 (g) findings in both parties’ favor, including that defendant had established that plaintiff’s assignor failed to appear for an EUO on May 17, 2019, that the EUO scheduled for June 17, 2019 was mutually rescheduled, and that the claim was timely denied. The Civil Court also held that there were triable issues of fact regarding “whether [d]efendant’s third [EUO] notice under the circumstances was reasonable and [*2]whether [d]efendant properly notified the eligible injured person of the location of the third scheduled EUO appointment” to be held on June 20, 2019.

Defendant is entitled to summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear at duly scheduled EUOs on May 17, 2019 and June 20, 2019. The record indicates that, prior to the time plaintiff’s assignor was supposed to appear, during a phone call between plaintiff’s assignor and defendant’s counsel’s office on June 17, 2019, the second EUO originally scheduled for June 17, 2019, was rescheduled, at plaintiff’s assignor’s request, to June 20, 2019. Defendant submitted prima facie evidence that plaintiff’s assignor was orally informed of the date, time, and location of the follow-up EUO scheduled for June 20, 2019 during the phone call on June 17, 2019, and plaintiff failed to submit an affidavit from someone with personal knowledge to rebut this evidence (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff’s assignor specifically requested that the second EUO be rescheduled to June 20, 2019, a mere three days later, this method of notice was sufficient (see 11 NYCRR 65-3.6 [b]). It is immaterial that plaintiff’s assignor may not have received written confirmation of the date, time, and location of the rescheduled EUO before June 20, 2019, since the no-fault regulations do not require notice of an EUO to be provided in writing (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). As it is undisputed that defendant timely scheduled EUOs of plaintiff’s assignor, that plaintiff’s assignor failed to appear at EUOs on May 17, 2019 and June 20, 2019, and that the claim was timely denied within 30 days of June 20, 2019, defendant’s cross-motion for summary judgment dismissing the complaint should have been granted (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

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

OTTLEY, J.P., BUGGS and HOM, JJ., concur.