Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants American Independent Ins. Co. and Good2Go Auto Insurance. 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. 2019-1467 K C) denied a motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. The second order (appeal No. 2019-1468 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 Insurance.

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

ORDERED that the order being appealed under appeal number 2019-1467 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 2019-1468 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 [*2]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. 2019-1467 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. 2019-1468 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 2019-1467 K C and the order being appealed under appeal number 2019-1468 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 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 (Robin S. Garson, J.), dated June 28, 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 & 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]). A review of the record establishes that, contrary to plaintiff’s sole contention with respect to defendant’s motion, defendant established proper mailing of the EUO scheduling letters. As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d at 597). Plaintiff’s contention that defendant needed, [*2]but failed, to demonstrate that the EUO scheduling letters were timely mailed after defendant’s receipt of the NF-2 form is raised for the first time on appeal and, in any event, lacks merit, and is contrary to Insurance Law article 51 and the regulations promulgated thereunder (see Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 11 NYCRR 65-3.5 [a], [d]; Appendix 13).

Accordingly, the order is affirmed.

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

Decided on June 3, 2022

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov 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 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 to Elizabeth Santiago, Tarsha Cambridge and Semen Benderskiy.

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, defendant appeals from so much of an order of the Civil 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 to Elizabeth Santiago, Tarsha Cambridge, and Semen Benderskiy on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied the claims at issue after plaintiff failed to appear at both an initial and a follow-up EUO (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]; Allay Med. Servs., P.C. v Nationwide Ins., 72 Misc 3d 137[A], 2021 NY Slip Op 50764[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha [*2]Cambridge, and Semen Benderskiy were properly denied. We reach no other issue.

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

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

The Rybak Firm, PLLC, (Damin J. Toell of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 30, 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 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, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling the IMEs were properly addressed and timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Neptune Med. Care, P.C. v Praetorian Ins. Co., 64 Misc 3d 132[A], 2019 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant’s motion seeking summary judgment on the ground that plaintiff’s assignor had failed to appear for IMEs should have been denied. We reach no other issue with respect to defendant’s motion for summary judgment.

However, contrary to plaintiff’s contention, it failed to demonstrate its prima facie [*2]entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion 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.

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

Decided on June 3, 2022

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

Law Office of Tina Newsome-Lee (Duane Frankson 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 (Sharon Bourne-Clarke, J.), entered October 19, 2018, deemed from a judgment of that court entered November 15, 2018. The judgment entered pursuant to the October 19, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,785.58.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 19, 2018 is vacated, plaintiff’s motion for summary judgment is denied, defendant’s cross motion for summary judgment dismissing 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.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 19, 2018 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). A judgment was subsequently entered on November 15, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Greenway Med. Supply Corp. v Travelers Ins. Co., 58 Misc 3d 131[A], 2017 NY Slip Op 51765[U] [App Term, [*2]2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered October 19, 2018 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on May 13, 2022

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, May 13, 2022

New Generation Wellness Chiropractic P.C. v Country-Wide Ins. Co., 66 Misc 3d 1207(A), 2020 NY Slip Op 50017(U), reversed.

APPEARANCES OF COUNSEL

Glinkenhouse Queen (Alan S. Queen of counsel) for appellant.

The Law Office of Thomas Torto (Jason Levine of counsel) for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff’s motion seeking to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered December 12, 2017, is granted, and defendant’s cross motion to vacate the judgment and dismiss the complaint is denied.

In or about July 2002, plaintiff commenced this action to recover assigned first-party no-fault benefits for services it rendered in August through October 2000 to its assignor who was injured in a motor vehicle accident on August 20, 2000. Defendant appeared and answered. On July 29, 2009, the State of New York dissolved plaintiff by proclamation. A settlement letter was drafted, which was signed by plaintiff’s attorney on August 12, 2009, which stated that the parties agreed that the action would be discontinued after defendant paid plaintiff{**75 Misc 3d at 56} $621, which sum was inclusive of attorney’s fees, costs and interest. The third paragraph of the letter referenced the provisions of CPLR 5003-a, while a sentence following that paragraph stated, “Please mail your settlement check promptly according to CPLR 5003 [sic, presumably CPLR 5003-a].” On August 13, 2009, defendant’s attorney signed the letter after modifying it by striking out its third paragraph and by adding handwritten language, to wit, “Payment to issue within 90 days with 14 days prior written notice to deft attorneys; judgment to issue in settled amount.” The sentence requesting prompt payment in accordance with the CPLR was not stricken. It is uncontroverted that defendant did not pay the amount set forth in the settlement. [*2]In May 2017, plaintiff sought to enter a judgment and submitted, among other things, a copy of the modified settlement letter and an ex parte proposed judgment to the clerk of the Civil Court. On December 12, 2017, a judgment was entered awarding plaintiff, insofar as is relevant to this appeal, $1,151.90 in interest accruing from August 12, 2009.

In January 2018, plaintiff moved to, among other things, recalculate the interest awarded in the judgment on the ground that it had erroneously been calculated at a simple rate instead of at a compound rate as allowed by Insurance Department Regulations (11 NYCRR) former § 65.15 (h). Defendant opposed the motion and cross-moved for “an Order . . . vacating the judgment . . . in favor of plaintiff and dismissing this action upon the grounds that the Secretary of State dissolved plaintiff and annulled its authority on July 29, 2009 and it has not been reinstated.” Plaintiff opposed the cross motion, to which defendant replied.

By order entered January 3, 2020, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion. The court vacated the judgment pursuant to CPLR 5015 and dismissed the complaint pursuant to CPLR 1017 and 1021 “due to the failure to substitute the Plaintiff as a party within a reasonable time after Plaintiff dissolved” (New Generation Wellness Chiropractic P.C. v Country-Wide Ins. Co., 66 Misc 3d 1207[A], 2020 NY Slip Op 50017[U], *6 [2020]). The court noted that the “record lacks any indication that the seven-year gap [between the August 2009 settlement letter and when plaintiff sought to enter judgment in May 2017] constitutes a reasonable time for Plaintiff to wind up its affairs” (2020 NY Slip Op 50017[U], *9). The Civil Court also found that the settlement{**75 Misc 3d at 57} “included a notice requirement” and that the judgment was “also properly vacated pursuant to CPLR 5015(a)(4) because Plaintiff failed to provide notice prior to entry” (id. at *4, *5). Plaintiff’s motion was denied as moot.

On appeal, plaintiff contends that the branch of its motion seeking to recalculate the statutory no-fault interest should have been granted and that defendant’s cross motion should have been denied, arguing, among other things, that the Civil Court improperly vacated the judgment pursuant to CPLR 5015; that Business Corporation Law §§ 1005 and 1006 control in the case at bar, not CPLR 1017 and 1021; and that the Civil Court improperly determined that plaintiff was not in the process of winding up its business affairs.

Contrary to the determination of the Civil Court, substitution was not required here under CPLR 1017 and 1021. Pursuant to Business Corporation Law §§ 1005 and 1006, following its dissolution, plaintiff was allowed to enter judgment and make its motion as part of the winding up of its business affairs. To the extent that Business Corporation Law §§ 1005 and 1006 can be deemed to be inconsistent with CPLR 1017 and 1021, the Business Corporation Law provisions govern (see CPLR 101). Business Corporation Law § 1005 (a) (2) “defines ‘winding up’ as the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets” (Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340, 349 [1989]). Business Corporation Law § 1006 includes, as part of “winding up,” the right of a dissolved corporation to participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name (Business Corporation Law § 1006 [a] [4]). Since Business Corporation Law § 1006 does not include any time limit for winding up the dissolved corporation’s affairs, it is proper for courts to imply a reasonable period of time (see e.g. Spiegelberg v Gomez, 44 NY2d 920, 921 [1978]).

As the party moving for vacatur of a judgment and dismissal of the complaint on the [*3]ground that plaintiff lacked the capacity to enter judgment or to move to recalculate interest, defendant had the burden of demonstrating, prima facie, that plaintiff was not still winding up its affairs (see e.g. Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d 818 [2017]; Singer v Riskin, 137 AD3d 999, 1000 [2016]; Brooklyn Elec. Supply Co., Inc. v Jasne & Florio, LLP, 84 AD3d 997 [2011]; Brach v Levine, 36 Misc 3d 1213[A], 2012 NY Slip Op{**75 Misc 3d at 58}51312[U] [Sup Ct, Kings County 2012]). A review of defendant’s initial moving papers shows that it did not argue that plaintiff was not winding up its affairs. For the first time in reply, defendant argued that plaintiff had offered no explanation for its failure to move for entry of a judgment within a reasonable time following defendant’s failure to pay the settlement and that “upon information and belief,” plaintiff has not been engaged in active business operations since 2000. Since all the averments defendant made in support of its motion, both in its initial moving papers and in reply, were insufficient to show that plaintiff was not winding up its business affairs between the time of the August 2009 settlement letter and the time when plaintiff sought to enter judgment in May 2017, defendant failed to show that plaintiff lacked capacity. We note that numerous cases have held that a substantial number of years was not an unreasonable amount of time for a corporation to wind up its affairs (see Lamarche Food Prods. Corp. v 438 Union, LLC, 178 AD3d 910 [2019] [24 years between dissolution and action giving rise to lawsuit]; Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d at 821 [11 years between dissolution and the motion to dismiss cross claims]; Moran Enters., Inc. v Hurst, 66 AD3d 972 [2009] [seven years between dissolution and the commencement of the lawsuit]; cf. Lance Intl., Inc. v First Natl. City Bank, 86 AD3d 479, 480 [2011]). Consequently, defendant did not demonstrate that its cross motion should be granted on the ground that plaintiff is not winding up its affairs.

As acknowledged by the Civil Court (see New Generation Wellness Chiropractic P.C. v Country-Wide Ins. Co., 2020 NY Slip Op 50017[U], *3), defendant did not argue in its cross motion that the settlement letter, as modified, required plaintiff to “provide notice prior to entry” of the judgment (id. at *4) or that the judgment should be vacated on the ground that plaintiff failed to provide such notice. Contrary to the Civil Court’s order, this was not, under the circumstances presented, a proper alternative basis upon which to grant defendant’s cross motion.

Plaintiff properly argues that the statutory no-fault interest awarded in the judgment from August 12, 2009, to the judgment date, December 12, 2017, should be recalculated from a simple rate to a compound rate (see Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). {**75 Misc 3d at 59}Defendant had the opportunity to pay the settlement amount without the accrual of additional interest (see CPLR 5003-a [a]). Its failure to do so (either within the statutory time frame or the 90 days enumerated by modified letter, a determination which we need not make) allowed plaintiff to enter a judgment for that amount “together with costs and lawful disbursements, and interest” (CPLR 5003-a [e]). Contrary to defendant’s argument in its respondent’s brief, nine percent pursuant to CPLR 5004 is not the correct rate of interest because “Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which were specific directives, supersede the interest provisions contained in CPLR 5004, the more general statute” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). The calculation of interest on the claims at issue is governed by the former no-fault regulations providing for compound interest (see Health Value [*4]Med., P.C. v Country Wide Ins. Co., 2019 NY Slip Op 52036[U]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff’s motion seeking to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered December 12, 2017, is granted and defendant’s cross motion to vacate the judgment and dismiss the complaint is denied.

Aliotta, P.J., Weston and Toussaint, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, Esq., P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered February 18, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Contrary to defendant’s contention, defendant failed to establish that it had timely denied plaintiff’s claims after plaintiff failed to appear at two duly scheduled EUOs (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]). As defendant did not demonstrate that it was not precluded from raising its proffered defense (see [*2]Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish either that the claims at issue had not been timely denied 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]).

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

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