Decided on September 9, 2022

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeals from orders of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), each entered November 20, 2018. The first order (appeal No. 2020-271 K C) denied a motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. The second order (appeal No. 2022-137 K C), insofar as appealed from, denied the branches of a motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto [*2]Insurance.

ORDERED that the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order being appealed under appeal number 2020-271 K C is reversed, with $30 costs, and the motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. is granted; and it is further

ORDERED that the order being appealed under appeal number 2022-137 K C, insofar as appealed from, is reversed, with $30 costs, and the branches of the motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant American Independent Ins. Co. moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Defendants American Independent Insurance Companies, Inc., Good2Go Auto Insurance and Omni Indemnity Company moved, in a single motion, to dismiss so much of the complaint as was asserted against them on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff opposed both motions and cross-moved for summary judgment. Defendant American Independent Ins. Co. appeals (appeal No. 2020-271 K C) from an order of the Civil Court entered November 20, 2018 denying the motion to dismiss the complaint insofar as asserted against it. Defendants American Independent Insurance Companies, Inc., and Good2Go Auto Insurance appeal (appeal No. 2022-137 K C) from so much of a separate order of the Civil Court, also entered November 20, 2018, as denied the branches of the motion seeking to dismiss so much of the complaint as was asserted against them.

For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order being appealed under appeal number 2020-271 K C and the order being appealed under appeal number 2022-137 K C, insofar as appealed from, are reversed. The first motion, by defendant American Independent Ins. Co., is granted, and the branches of the second motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc., and Good2Go Auto Insurance are granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

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 (Sandra E. Roper, J.), dated August 6, 2021. The order (1) denied plaintiff’s motion to, in effect, deem its service of process on defendant on April 3, 2018 as having satisfied so much of an order of the Civil Court dated November 14, 2019 as directed plaintiff to serve defendant within 30 days, (2) sua sponte dismissed the complaint with prejudice based on a finding that plaintiff had not complied with that portion of the November 14, 2019 order, and (3) denied as moot defendant’s cross motion to dismiss the complaint based on res judicata.

ORDERED that, on the court’s own motion, so much of the notice of appeal as is from so much of the order as, sua sponte, dismissed the complaint with prejudice is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is reversed, with $30 costs, so much of the order as, sua sponte, dismissed the complaint with prejudice based on a finding that plaintiff had not complied with so much of an order of the Civil Court dated November 14, 2019 as directed plaintiff to serve defendant within 30 days is vacated, plaintiff’s motion to, in effect, deem its service of process upon defendant on April 3, 2018 as having satisfied that portion of the November 14, 2019 order is granted, and defendant’s cross motion to dismiss the complaint based on res judicata is granted.

On March 24, 2017, plaintiff commenced this action (see CCA 400) to recover assigned [*2]first-party no-fault benefits. Plaintiff alleged that it served defendant with the summons and complaint on April 6, 2017. Defendant did not appear or answer, and, by order entered November 6, 2017, the Civil Court awarded plaintiff a default judgment. In January 2018, defendant moved to vacate the default judgment. By order dated November 14, 2019, the Civil Court granted defendant’s motion to vacate the default judgment and directed plaintiff to “effectuate proper service” of the summons and complaint within 30 days of the order. Plaintiff then moved by order to show cause, signed on November 26, 2019, to, in effect, deem an alleged April 3, 2018 service of the summons and complaint upon defendant as having satisfied plaintiff’s obligation to “effectuate proper service” within 30 days of the November 14, 2019 order. The November 26, 2019 order to show cause stayed the action pending a final determination of the motion. Defendant opposed plaintiff’s motion, asserting that the April 3, 2018 service attempt was untimely, and cross-moved, in the event plaintiff’s motion was granted, to dismiss the complaint pursuant to CPLR 3211 (a), on the ground that the action is barred by the doctrines of res judicata and collateral estoppel based on a declaratory judgment of the Supreme Court, Nassau County, entered on May 20, 2019. The declaratory judgment, which was attached to defendant’s moving papers, declared that “Shafai Acupuncture [plaintiff herein] has no right to receive payment for [the bills at issue in the instant action, among others] because Shafai Acupuncture failed and/or refused to appear for Examinations Under Oath requested by STATE FARM, and thus breached a condition of coverage and violated its obligations under the New York No-Fault Laws.” By order dated August 6, 2021, the Civil Court denied plaintiff’s motion, sua sponte dismissed the complaint with prejudice upon a finding that “Plaintiff failed to properly effectuate service within thirty days of Decision/Order dated November 14, 2019 as directed,” and denied defendant’s cross motion as moot.

While no appeal as of right lies from the sua sponte portion of the August 6, 2021 order (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]), we deem the notice of appeal to be an application for leave to appeal from that portion of the order and grant plaintiff’s application (see CCA 1702 [c]). We agree with plaintiff’s argument on appeal that, at the time of the Civil Court’s August 6, 2021 order, the 30-day period that the Civil Court’s November 14, 2019 order gave plaintiff to effectuate service had not yet expired due to the stay contained in plaintiff’s November 26, 2019 order to show cause. Consequently, so much of the August 6, 2021 order as, sua sponte, dismissed the complaint with prejudice for failure to effectuate service within the time frame set forth in the November 14, 2019 order is vacated.

With respect to plaintiff’s motion, it is undisputed that plaintiff commenced this action on March 24, 2017, and that the attempted service on April 3, 2018 occurred after the expiration of the 120-day time period allotted by CPLR 306-b (see CCA 403). However, by giving plaintiff 30 days to effectuate service in the November 14, 2019 order, the Civil Court implicitly found that an extension of time for service was warranted under CPLR 306-b. In our opinion, under the circumstances presented, the Civil Court should have deemed plaintiff’s April 3, 2018 service as satisfying the service that plaintiff had been directed to effectuate in the November 14, 2019 order.

In view of the foregoing, defendant’s cross motion pursuant to CPLR 3211 (a) to dismiss the complaint on the ground that the action is barred by the doctrines of res judicata and collateral estoppel is no longer moot. In lieu of remitting the cross motion to the Civil Court for [*3]a new determination thereof, we review the cross motion in the interest of judicial economy (see S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc., 178 AD3d 977, 979 [2019]; Bonafede v Bonito, 145 AD3d 842, 843-844 [2016]).

In light of the May 20, 2019 declaratory judgment, defendant’s cross motion to dismiss the complaint should have been granted based on the doctrine of res judicata (see Wave Med. Servs., P.C. v Farmers New Century Ins. Co., 67 Misc 3d 137[A], 2020 NY Slip Op 50555[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed, so much of the order as, sua sponte, dismissed the complaint with prejudice based on a finding that plaintiff had not complied with so much of an order of the Civil Court dated November 14, 2019 as directed plaintiff to serve defendant within 30 days is vacated, plaintiff’s motion to, in effect, deem its service of process upon defendant on April 3, 2018 as having satisfied that portion of the November 14, 2019 order is granted, and defendant’s cross motion to dismiss the complaint based on res judicata is granted.

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

Gullo & Associates, LLP (Kristina O’Shea of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 27, 2020. The judgment, entered upon a decision of that court dated November 8, 2019, after a nonjury trial, awarded plaintiff the principal sum of $3,158.02. The appeal from the judgment brings up for review so much of an order of that court (Louis L. Nock, J.) dated August 16, 2017 as denied defendant’s motion to dismiss the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated November 8, 2019 is deemed a premature notice of appeal from the judgment entered January 27, 2020 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, so much of the order dated August 16, 2017 as denied defendant’s motion to dismiss the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor is vacated, defendant’s motion to dismiss the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Adelaida M. Laga, P.T. (Laga) commenced this action against Unitrin Auto and Home Insurance Company to recover first-party no-fault benefits for medical services provided to its assignor, Belle Au Monde Corriolant, as a result of injuries Corriolant allegedly sustained in an automobile accident on August 7, 2011. In its answer, dated August 21, 2015, defendant [*2]identified itself as Kemper Independence Insurance Company (Kemper). Before Laga commenced this action, a declaratory judgment action had been commenced in Supreme Court, Bronx County, by Kemper against Laga, six other providers, and the assignor herein, Corriolant, alleging that Corriolant had breached the terms of the insurance policy in question by failing to appear for duly scheduled independent medical examinations. On August 4, 2016, an order was entered in the Supreme Court declaratory judgment action declaring that Laga and five other providers were “not entitled to no-fault insurance coverage for the motor vehicle accident which occurred on August 7, 2011.”

In September 2016, defendant moved in the Civil Court to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), contending that the instant action is barred by virtue of the order in the declaratory judgment action. Plaintiff opposed defendant’s motion, raising no procedural issues, and cross-moved for summary judgment. By order dated August 16, 2017, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, implicitly denied plaintiff’s cross motion, found that plaintiff had established “its prima facie case,” and held that “the sole issue that remains for trial is the privity between Kemper and [defendant].” On the trial date, the Civil Court (Odessa Kennedy, J.), upon denying defense counsel’s request for an adjournment to allow defendant to secure a witness to testify on the issue of privity between Kemper and defendant, ordered that judgment be entered in plaintiff’s favor. A judgment in favor of plaintiff in the principal sum of $3,158.02 was entered on January 27, 2020.

Collateral estoppel, or issue preclusion, 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]). The party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51289[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D’Arata, 76 NY2d at 664; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Here, defendant established that the issue of whether plaintiff was entitled to receive no-fault benefits in connection with the August 7, 2011 accident involving Corriolant was identical to the issue previously decided in the declaratory judgment action and plaintiff failed to establish that it had not received a full and fair opportunity to litigate in the declaratory judgment action. Indeed, plaintiff appeared in that action and the order in that action even indicates that plaintiff submitted opposition to the motion giving rise to the order (see Reid v Reid, 198 AD3d 993, 994 [2021]; Miller v Falco, 170 AD3d 707, 709 [2019]; David v State, 157 AD3d 764, 765-766 [2018]; Matter of Abady, 22 AD3d 71, 85 [2005]). Thus, defendant was entitled to dismissal of the complaint on the ground of collateral estoppel.

We note that, while defendant failed to raise the affirmative defense of collateral estoppel in its August 21, 2015 answer, defendant had no basis to assert that defense before August 4, [*3]2016, when the order in the declaratory judgment action was entered (see Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Furthermore, an unpleaded defense may serve as the basis for the dismissal of a complaint in the absence of surprise or prejudice to the opposing party (see Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; Vixan Cab Corp. v Chelsea Rental Corp., 72 Misc 3d 128[A], 2021 NY Slip Op 50594[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the judgment is reversed, so much of the order dated August 16, 2017 as denied defendant’s motion to dismiss the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor is vacated, defendant’s motion to dismiss the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 31, 2019. The order, insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

For the reasons stated in Island Life Chiropractic Pain Care, PLLC, as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2020-251 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Decided on August 19, 2022

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered November 4, 2019. The order insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

Defendants based their motion on CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant American Independent Ins. Co.’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant American Independent Ins. Co. argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over it (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an “affirmation” by its counsel, who made unsupported assertions that, among other things, defendant American Independent Ins. Co. had transacted business in New York by knowingly issuing policies to New York drivers, and that American Independent Ins. Co. had established an ongoing relationship with defense counsel in New York, thereby subjecting American Independent Ins. Co. to jurisdiction in New York. For the reasons stated in Excel Prods., Inc. v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the branch of the motion by defendant American Independent Ins. Co. seeking to dismiss the complaint insofar as asserted against it should have been granted. In addition, because the “affirmation” submitted by plaintiff’s counsel is unsigned, the affirmation is of no probative value (see WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50146[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]) and plaintiff failed to satisfy its burden of making a prima facie showing that there was personal jurisdiction over American Independent Ins. Co. (see Hopstein v Cohen, 143 AD3d 859 [2016]).

Similarly, after defendant American Independent Insurance Companies, Inc. contested jurisdiction, “plaintiff need[ed] only make a prima facie showing that such jurisdiction exists” (Hopstein, 143 AD3d at 860 [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the instant case, the only proof that service of process was made upon American Independent Insurance Companies, Inc. consisted of affidavits of service stating that service was made upon defendant Good2Go Auto Insurance. Consequently, the branch of the motion by defendant American Independent Insurance Companies, Inc. seeking to dismiss the complaint insofar as asserted against it should have been granted.

To the extent defendant Good2Go Auto Insurance moved to dismiss the complaint insofar as asserted against it, plaintiff’s opposition papers contained copies of affidavits of service reflecting that service was made upon Good2Go Auto Insurance. In its reply papers, Good2Go Auto Insurance made no attempt to demonstrate that the person served was not “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service” (CPLR 311 [1]). As a result, Good2Go Auto Insurance failed to demonstrate a basis to disturb so much of the order as denied the branch of the motion by defendant Good2Go Auto Insurance seeking to dismiss the complaint insofar as asserted against it.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against [*3]American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated April 15, 2021. 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 the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant’s mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged.

Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see 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, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant’s June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

Hollander Legal Group, P.C. (Damin J. Toell of counsel), for appellant. The Rybak Firm, PLLC (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered August 22, 2019. 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 affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider’s assignor 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 assignor, that the assignor had 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]; Parisien v Metlife Auto & [*2]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]). Upon a review of the record, we find, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, that defendant sufficiently established that the EUO scheduling letters 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]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Decided on August 12, 2022

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