NYSCEF doc nos. 58-67 were read on this motion for an order directing the entry of a default judgment.

Plaintiff commenced this action on April 29, 2021, by filing a summons and complaint (see NYSCEF doc no. 1). Plaintiff subsequently filed an amended summons and amended complaint on April 30, 2021 (see NYSCEF doc nos. 2-3). The amended complaint alleges, in sum and substance, that defendant was allegedly injured while a passenger in a vehicle insured by plaintiff (see id. ¶¶ 12-14). The complaint further alleges that the subject insurance policy covers any occupants of the insured vehicle for any medical necessity and causally related medical expenses arising out of the use or operation of the insured vehicle as a result of an accidental collision (see id. ¶ 16). The complaint further alleges that tens of thousands of dollars in no-fault claims for treatment allegedly provided to defendant have been submitted to plaintiff (see id. ¶ 17). The complaint further alleges that defendant’s testimony at an examination under oath raised issues about the legitimacy and necessity of such medical treatments (see id. ¶ 28). [*2]The complaint further alleges that defendant failed to subscribe and return her examination under oath transcript and appear for independent medical examinations, as duly requested by plaintiff (see id. ¶¶ 29-30). The complaint further alleges that, based on plaintiff’s investigation into the collision and defendant’s noncompliance with its requests, plaintiff believes defendant’s alleged injuries and no-fault treatment were not causally related to the subject collision and did not arise from an insured event (see id. ¶ 31). Plaintiff seeks relief in the form of a judgment declaring that it owes no duty to pay the claims regarding the subject collision (see id. ¶¶ 38, 41). The amended complaint is verified by plaintiff’s attorney, only (see id. at 12).

In the court’s September 22, 2023 decision and order on motion seq. no. 002, the court extended the time for plaintiff to serve the complaint on defendant to 60 days from the date of the order (see NYSCEF doc no. 54). On October 26, 2023, plaintiff filed an affidavit of service of process indicating that, on October 6, 2023, a process server delivered the amended summons and amended complaint to a person of suitable age and discretion at defendant’s residence and mailed a copy of process to the residence (see NYSCEF doc no. 56).

On February 5, 2024, plaintiff filed this motion for an order directing the entry of a default judgment in favor of plaintiff and against defendant (see NYSCEF doc no. 58). In support of the merits, plaintiff submits an unsworn statement, styled as an affidavit, allegedly of a senior no-fault adjuster assigned to defendant’s claim number and familiar with the facts of the case based on their personal handling and review of the file (see affirmation of Schreiber, exhibit A ¶¶ 1-2, 6). The statement asserts, in sum and substance, that plaintiff maintains a founded belief that defendant’s injuries and treatment did not arise from an insured event (id. ¶ 16).

CPLR 3215(a) provides, in pertinent part, that “[w]hen a defendant has failed to appear, plead or proceed to trial . . . the plaintiff may seek a default judgment against them.” On a motion pursuant to CPLR 3215, a plaintiff demonstrates entitlement to a default judgment by submitting proof of: (1) service of the summons and complaint; (2) the defendant’s default in answering, appearing, or otherwise responding to the complaint; (3) the facts constituting the claim; and (4) the amount due (see CPLR 3215[f]; Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d 416, 417 [1st Dept 2022]; Gantt v N. Shore-LIJ Health Sys., 140 AD3d 418, 418 [1st Dept 2016]; Merchants Mut. Ins. Co. v Dunham Piping & Heating Corp., 203 AD3d 543, 544 [1st Dept 2022]).

The court finds based on the papers submitted that plaintiff has shown prima facie good service of process on defendant pursuant to CPLR 308(2) by means of the affidavit of service, that defendant has failed to answer, appear, or otherwise respond to the amended complaint, and that the time to do so has expired. The court further finds that plaintiff has submitted adequate proof of the facts constituting the claims by means of the unsworn statement submitted.

Effective January 1, 2024, the recently amended CPLR 2106 now provides:

“[t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

“I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

“(Signature)”

CPLR 2106 concerns the affirmation of the truth of statements. Prior to the recent amendment, the permissible use of unsworn statements with the same force and effect as affidavits was much more limited than it is now. Section (a) concerned only New York attorneys and certain health care practitioners, while section (b) concerned persons “physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.” Both deprecated sections required the unsworn statement be subscribed and affirmed by the person making the statement “to be true under the penalties of perjury.” The current statute removes section (a) entirely along with the geographic restrictions in (b), permitting such statements “wherever made.”

Here, the unsworn submission states, “I affirm this 25th day of January, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law” and is signed with the same name as the person identified in the body as making the statement (affirmation of Schreiber, exhibit A, at 4). The court finds that the statement submitted satisfies the requirements of CPLR 2106 as amended and must be regarded as having the same force and effect as an affidavit. The court finds further that the statement submitted is adequate proof of the facts constituting the claims for the purpose of demonstrating entitlement to the entry of a default judgment. As such, plaintiff is entitled to a default judgment.

Accordingly, it is

ORDERED that the motion by plaintiff pursuant to CPLR 3215 for an order directing the entry of a default judgment on the complaint in favor of plaintiff and against defendant Shekima Roberts is granted, there being no opposition submitted; and it is further

ADJUDGED that plaintiff is not required to pay any sums, monies, damages, awards, or benefits to Shekima Roberts, including but not limited to Mandatory Personal Injury Protection (No-Fault), any uninsured, underinsured, supplementary uninsured, or supplementary underinsured motorist benefit claims, any medical payment claims, any property damage claims, and any bodily injury liability benefits, in connection with the alleged incident of July 28, 2020, claim number 91306; and it is further

ORDERED that, within five days of entry, plaintiff shall serve a copy of this order with notice of entry on Shekima Roberts and on the clerk, who shall enter judgment accordingly.

The foregoing constitutes the decision, order, and judgment of the court.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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 (Heela D. Capell, J.), dated September 16, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granting defendant’s motion for summary judgment dismissing the complaint and denying, as moot, plaintiff’s cross-motion for summary judgment while declining to consider plaintiff’s additional papers submitted in support of its cross-motion for summary judgment.

Defendant moved for summary judgment on the ground that it had timely and properly denied plaintiff’s claims based upon plaintiff’s failure to timely provide requested written verification (see 11 NYCRR 65-3.5 [o]). According to defendant, after receipt of the subject NF-3 forms on July 23, 2018 and July 30, 2018, it mailed a letter to plaintiff on August 14, 2018 scheduling an examination under oath (EUO) to be held on September 14, 2018. Plaintiff appeared at the EUO on September 14, 2018. Defendant then requested written verification from plaintiff by letter dated September 18, 2018, with a follow up to that request dated October 19, 2018. On February 4, 2019, defendant denied the claims based upon plaintiff’s failure to provide [*2]the requested written verification within 120 days of the September 18, 2018 request. Contrary to the holding of the Civil Court, we find that defendant did not establish that it had timely denied the claims at issue.

Upon receipt of a “prescribed verification form” such as an NF-3 form (titled “verification of treatment by attending physician or other provider of health service”) or an NF-4 form (titled “verification of hospital treatment”), the no-fault regulations grant an insurer the opportunity to request “additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). 11 NYCRR 65-3.5 (b) provides that “[a]ny [additional verification] shall be requested within 15 business days of receipt of the prescribed verification forms” (emphasis added). An insurer is required to pay or deny a claim within 30 calendar days of its receipt of proof of claim, which consists of a prescribed verification form and any properly requested additional verification (see 11 NYCRR 65-3.8 [a]). The only exception to the 15-business-day deadline to request additional verification can be found in 11 NYCRR 65-3.8 (l), which provides, insofar as is relevant here, that any deviation from the time frame set forth in 11 NYCRR 65-3.5 (b) reduces the 30 days to pay or deny a claim by the same number of days that the request for additional verification was made after the 15th business day. (Thus, while defendant’s EUO scheduling letter was one day “late” with respect to the NF-3 form, which, defendant asserts, it received on July 23, 2018, the only effect of that delay would be to reduce the time to pay or deny that claim from 30 days to 29 days. For purposes of this discussion, the scheduling letter will be referred to as “timely.”) Here, defendant’s September 18, 2018 request was made nearly 60 days after receipt of the first NF-3 form and more than 50 days after receipt of the second NF-3 form.

Defendant’s argument on appeal is that its August 14, 2018 EUO scheduling letter tolled “the time within which it had to pay or deny plaintiff’s claim until it received all additional verification,” including what was requested for the first time in the September 18, 2018 letter. We agree that defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter, which letter was “timely” issued pursuant to 11 NYCRR 65-3.5 (b) and 65-3.8 (l), but, contrary to defendant’s apparent position, that toll expired on September 14, 2018 when the EUO was conducted and proof of claim became complete (see 11 NYCRR 65-3.8 [a] [1] [“No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (emphasis added)]). In any event, defendant’s argument misconstrues both 11 NYCRR 65-3.8 (a), the regulatory basis for tolling, and 11 NYCRR 65-3.5 (b), which permits an insurer to request additional verification within 15 business days of receipt of a prescribed verification form. It was defendant’s time to pay or deny plaintiff’s claims that was tolled, pursuant to 11 NYCRR 65-3.8 (a), by the timely EUO scheduling letter—not defendant’s time to request additional verification under 11 NYCRR 65-3.5 (b). Any requests for additional verification must be made within 15 business days of receipt of the prescribed verification form, subject to the minor allowance set forth in 11 NYCRR 65-3.8 (l), and, as previously explained by this court, the regulations do not provide that a toll of the time to pay or deny a claim created by a timely additional verification request also “grants an insurer additional opportunities to make [*3]requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Indeed, an original request for additional verification (see 11 NYCRR 65-3.5 [b]) made more than 30 calendar days after receipt of a prescribed verification form, i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Slip Op 51220[U]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]).

We note that there is another provision in the regulations regarding additional verification, 11 NYCRR 65-3.6 (b), which states that, “[a]t a minimum, if any requested verifications [i.e., additional verification] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested.” In Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013, 1014 [2023]), the Appellate Division, Second Department, held that 11 NYCRR 65-3.6 (b) permitted a no-fault insurer, where there had been an “original” request for an EUO that was timely made pursuant to 11 NYCRR 65-3.5 (b), and for which there was no appearance, to follow up on that request as often as the insurer found necessary, while the initial toll of the insurer’s time to pay or deny the claim continued, as long as such follow-up requests were “timely and proper[ ].” Neither 11 NYCRR 65-3.6 (b) nor the holding in Quality Health Supply Corp. v Nationwide Ins. is applicable to the determination of this case for two reasons. First, plaintiff herein complied with defendant’s original request for additional verification by appearing for an EUO on September 14, 2018; in other words, here, the “timely” requested additional verification was “supplied,” whereas 11 NYCRR 65-3.6 (b) only applies where the additional verification “has not been supplied.” Second, the September 18, 2018 request at issue is an “original request” seeking new verification, not a “follow up” of an “original request” seeking verification that has already been requested and “has not been supplied” by “the party from whom the verification was requested,” as was the case in Quality Health Supply Corp. v Nationwide Ins.

In view of the foregoing, defendant failed to demonstrate that it timely denied the claims at issue and therefore that it was not precluded from raising the defense upon which its motion for summary judgment was based (see 11 NYCRR 65-3.8 [a] [1]; RA Med. Servs., P.C. v Lancer Ins. Co., 76 Misc 3d 129[A], 2022 NY Slip Op 50793[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Neptune Med. Care, P.C., 2015 NY Slip Op 51220[U], *1-2; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]; cf. Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Consequently, plaintiff correctly argues that defendant’s motion for summary judgment should have been denied.

Plaintiff’s cross-motion for summary judgment, although no longer moot, was properly denied, as plaintiff failed to demonstrate the absence of any material issue of fact (see CPLR 3212 [b]; 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]).

Finally, contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no [*4]preclusive effect on this case as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the submission of that decision and order.

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

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

Law Offices of Brian Rayhill (Lawrence Wolkow 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 (Sandra E. Roper, J.), entered February 8, 2023. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not an eligible injured person (EIP) for receipt of no-fault benefits as his injuries did not arise from the use or operation of an insured vehicle (see Insurance Law § 5103; 11 NYCRR 65-1.1 [d] [a]). Defendant contended that plaintiff’s assignor’s injuries were the result of an assault after the subject motor vehicle accident, relying on the truth of plaintiff’s assignor’s factual assertions contained within uncertified records of the Kings County Hospital Center, where plaintiff’s assignor was admitted one hour after the subject accident. Conceding that the statements were hearsay, defendant’s attorney argued that they were admissible as exceptions as party statements and/or statements relevant to diagnosis and treatment. By order entered February 8, 2023, insofar as appealed from, the Civil Court denied defendant’s motion.

A review of the records shows that, contrary to defendant’s contentions, defendant failed to establish, as a matter of law, that plaintiff’s assignor was not an EIP as defined by the [*2]Insurance Law and no-fault regulations. Hospital and medical records are admissible to support a summary judgment motion if the records are certified pursuant to CPLR 4518 (c) or the proponent of the records submits foundational testimony pursuant to CPLR 4518 (a) (see Berkovits v Chaaya, 138 AD3d 1050 [2016]; Matter of Kai B., 38 AD3d 882 [2007]). Here, as plaintiff correctly contends, the hospital records were not certified and defendant failed to otherwise establish a proper foundation for their admissibility. Therefore, the statements relied upon by defendant were not admissible (see Yassin v Blackman, 188 AD3d 62 [2020]; Berkovits, 138 AD3d 1050; Matter of Kai B., 38 AD3d 882). Consequently, defendant failed to proffer competent evidence to establish, as a matter of law, its defense that plaintiff’s assignor was not an EIP (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), and defendant’s motion was properly denied.

It is noted that, even if the hospital records and the statements contained therein were admissible, defendant would still not be entitled to summary judgment dismissing the complaint, as defendant’s motion failed to eliminate all material questions of fact as to whether plaintiff’s assignor’s injuries were the result of an assault and not the result of the use or operation of a motor vehicle.

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

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered April 29, 2022. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branches of defendant’s motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

For each bill at issue, defendant established prima facie that it timely mailed initial and [*2]follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]). To the extent that the District Court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, we note that the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims (see id.; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered June 21, 2022. The order, insofar as appealed from, 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 appeals from so much of an order of the District Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff failed to appear for the EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.8 [l]). In addition, defendant submitted affidavits by its attorney who was scheduled to conduct the EUOs, as well as certified transcripts of the attorney’s statements of the nonappearances, which were sufficient to establish plaintiff’s failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], [*2]2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). To the extent the court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Upon the foregoing cited papers after oral arguments made on the record, the Decision and Order for Plaintiff’s motion to compel discovery pursuant to CPLR 3124 is hereby deemed MOOT, and Defendant’s Cross-Motion to dismiss and for summary judgment pursuant to CPLR 3211(a)(5) and 3212 is hereby GRANTED as follows:

This Court dismisses Plaintiff’s complaint as the instant action is barred under the doctrines of res judicata and collateral estoppel by Declaratory Judgment granted on default in the Supreme Court, County of Nassau, by The Honorable R. Bruce Cozzens, Jr., State Farm Fire and Casualty Insurance Company v. Luis Alejandro, et. al., under Index No. 615595/18. This Court takes judicial notice of this Declaratory Judgment which declared, inter alia, Plaintiff/Provider has no right to payment for No-Fault claims for the underlying accident of September 5, 2017, as the underlying loss was an intentional act, staged accident, for which there is no coverage. There are identical parties and date of accident with this instant matter. It is of no moment that there is no specific claim number included in the DJ, as Plaintiff/Provider argues as a dispositive omission. Further, Plaintiff/Provider’s argument of prejudice by ambush of the untimeliness of the DJ as procedurally improper is not compelling and thereby rejected for the [*2]purposes of Plaintiff’s application for an adjournment. Plaintiff/Provider and individual EIP/assignor had full, ample, and unfettered opportunity to engage in the defense in the DJ action but chose not to so do and therefore may not do so in this forum, which is a court of limited jurisdiction that does not sit as a Court of Equity. This Court is mandated and shall take judicial notice Sua Sponte of any DJ actions duly entered in courts of superior jurisdiction, as is herein, that may be attendant or relevant to the instant action before it, from any source during its deliberation, whether neither party brings it to This Court’s attention. For the foregoing reasons, this case is dismissed pursuant to the Doctrines of Res Judicata and Collateral Estoppel.

This constitutes the Decision and Order of This Court.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 18, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [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 complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim 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 a timely denial of claim form that was 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 defendant’s motion for summary judgment dismissing the complaint is denied.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 10, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

For the reasons stated in JSJ Anesthesia Pain Mgt., PLLC, as Assignee of Gardner-Bowlyn, Janet v Nationwide Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-655 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), dated February 22, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to compel plaintiff to accept defendant’s late answer.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident which occurred on April 22, 2015. Defendant was personally served with process at its Illinois office on September 29, 2020. Defendant did not timely appear or answer the complaint. It is undisputed that, in February 2021, defendant contacted plaintiff’s counsel and requested that the action be voluntarily discontinued on the ground that there was no coverage under the insurance policy, as the policy had been cancelled effective April 16, 2015 due to nonpayment of the premium. In an email sent on March 15, 2021, plaintiff’s counsel stated that it would not voluntarily discontinue the action. Defense counsel served an answer on March 25, 2021, and plaintiff rejected it as untimely.

By notice of motion dated June 16, 2021, defendant moved to compel plaintiff to accept defendant’s late answer, pursuant to CPLR 3012 (d), alleging, as is relevant to this appeal, that there was a reasonable excuse for its delay in answering. In support of its motion, defendant submitted an affidavit of its employee who averred that the delay was due to defendant’s [*2]difficulty in connecting the summons and complaint to the imsurance policy and claim file. The policy was inactive and defendant had been served in Illinois even though the policy was issued in Nevada, and New York was the site of the accident and lawsuit. Once the policy and claim file were identified, there was an additional delay in answering, as defendant contacted plaintiff’s counsel to request that the action be voluntarily discontinued on the ground that there was no active policy coverage at the time of the accident. In opposition, plaintiff argued that defendant had failed to proffer a reasonable excuse for its delay in answering, instead admitting to mere law office neglect. By order dated February 22, 2023, insofar as appealed from as limited by the brief, the Civil Court granted defendant’s motion to compel plaintiff to accept its late answer, finding that defendant had proffered a reasonable excuse for its delay in serving its answer.

A court may compel a plaintiff to accept a defendant’s late answer “upon such terms as may be just and upon a showing of a reasonable excuse for delay” in answering (CPLR 3012 [d]; see also Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). Under the particular circumstances presented, as well as defendant’s lack of willfulness and the absence of any prejudice to plaintiff, we find that the Civil Court did not improvidently exercise its discretion in granting defendant’s motion to compel plaintiff to accept its late answer (see CPLR 3012 [d]; Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 2017 NY Slip Op 51310[U]).

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

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