Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner 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 March 10, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint.

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).

Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs (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], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), thereby demonstrating that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. McCormack & Mattei, P.C. (Andre S. Haynes of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.; op 53 Misc 3d 216 [2016]), entered June 30, 2016. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $2,226.41, following a calculation of statutory no-fault interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment which dismissed the complaint after a nonjury trial that was limited, pursuant to a stipulation, to the sole issue of whether plaintiff had appeared for examinations under oath (EUOs).

Transcripts recording defendant’s attorney’s statements that, as of a certain time, the provider, plaintiff herein, had not appeared for EUOs scheduled to be held at that place and time—”bust” statements—were admitted into evidence, over plaintiff’s objection, as business records (see CPLR 4518 [a]) to prove the nonappearances. Following the trial, the Civil Court determined that defendant proved by a preponderance of the evidence that plaintiff failed to appear at least two times for a scheduled EUO, and entered a judgment dismissing the action (Charles Deng Acupuncture, P.C. v Titan Ins. Co., 53 Misc 3d 216 [2016]). Plaintiff appeals, arguing that the court erred in admitting the transcripts, and that, without the transcripts, defendant did not establish that plaintiff had failed to appear at the EUOs.

Contrary to the determination of the Civil Court, the transcripts of the “bust” statements should not have been admitted into evidence. They were hearsay—out-of-court statements being used to prove the truth of the matter asserted—and therefore generally would only be admissible if a hearsay exception applies. While defendant contended, and the court agreed, that the transcripts were admissible as business records pursuant to CPLR 4518 (a), we disagree and hold that these transcripts were not admissible at this trial as business records to prove that plaintiff had not appeared for examinations under oath.

Under CPLR 4518 (a), a business record—a “writing or record” that is “made as a memorandum or record of any act, transaction, occurrence or event”—will be admissible as proof of the acts, transactions, occurrences or events recorded, if the court finds that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” A transcript is a record of words that were uttered; while those words may describe an event, transcripts are generally not made as a memorandum or record of the event described. Here, defendant did not show a sufficient basis to admit counsel’s hearsay statements or that these transcripts should otherwise be treated as admissible pursuant to CPLR 4518 (a). Indeed, even if the transcripts could be treated as a “memorandum or record” of a nonappearance, rather than of a statement, there is no basis on this record to find that the record “was made in the regular course of any business” or “that it was the regular course of such business to make” a transcript as such a “memorandum or record” of a nonappearance (CPLR 4518 [a]).

We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.

As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the sum of $2,226.41, following a calculation of statutory no-fault interest and an assessment of attorney’s fees.

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

Hollander Legal Group, P.C. (Allan S. Hollander 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 (Consuelo Mallafre Melendez, J.), entered October 25, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.

A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint established that defendant’s 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 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 were timely denied on that ground (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123). Moreover, we find, contrary to the determination of the Civil Court, that, since the address to which defendant mailed the EUO scheduling letters to the assignor matched the address contained on the NF-3 forms plaintiff provided to defendant, defendant established, prima facie, that the letters had been properly mailed to plaintiff’s assignor (see Compas Med., P.C. v American Tr. Ins. Co., 64 Misc 3d 141[A], 2019 NY Slip Op 51257[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As plaintiff’s opposition papers failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 4, 2019. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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

In November of 2015, plaintiff commenced this action by filing a summons and complaint seeking to recover assigned first-party no-fault benefits for medical services it had provided to defendant’s insured as a result of a car accident that occurred on December 21, 2013. Defendant denied the allegations in its answer dated December 24, 2015, and asserted affirmative defenses. By an undated notice of motion, plaintiff moved for summary judgment and, in support thereof, plaintiff submitted its counsel’s undated affirmation. Defendant cross-moved to dismiss the complaint, relying, in part, on an unsigned and undated affidavit.

By order entered October 4, 2019, the Civil Court denied plaintiff’s motion and defendant’s cross motion. The court stated that “Defendant’s [cross] motion is denied for defective notice/papers. Plaintiff’s motion is denied for defective papers.” Plaintiff appeals from so much of the order as denied its motion.

While a court may disregard procedural irregularities (see CPLR 2001), we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion “for [*2]defective papers,” particularly when the court also denied defendant’s cross motion for the same reason.

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

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

GOLIA, J., dissents and votes to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff’s motion for summary judgment in the following memorandum:

CPLR 2001 provides, in relevant part, that, “if a substantial right of a party is not prejudiced, [a] mistake, omission, defect or irregularity shall be disregarded” (see Grskovic v Holmes, 111 AD3d 234, 242-243 [2013]; see also Harrington v Brunson, 129 AD3d 1581 [2015]; Henry v Gutenplan, 197 AD2d 608 [1993]). The Civil Court failed to identify the defect in plaintiff’s motion papers or any substantial right of a party that was prejudiced thereby. The majority points out that the notice of motion was undated as was the supporting affirmation. I note, however, that there was a return date on the notice of motion, and even the omission of a return date is not necessarily prejudicial and has been held to have been properly disregarded (see Harrington v Brunson, 129 AD3d at 1581). In any event, under the circumstances presented, the matter should be remitted to the Civil Court for identification of the defect and a determination of whether any substantial right was prejudiced thereby. In the event that it is established that a substantial right of a party is not prejudiced, the defect shall be disregarded and the court should decide the motion on its merits.

Accordingly, I vote to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff’s motion for summary judgment.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Darya Klein of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 11, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, it is undisputed that the vehicle in question was insured by defendant under a Pennsylvania automobile insurance policy and that defendant received notice of plaintiff’s claim more than 30 days after the accident. Defendant moved for summary judgment dismissing the complaint, asserting that Pennsylvania substantive law applied, and arguing that, under Pennsylvania law, it was entitled to dismissal of the complaint because it had not received timely notice of either the accident or the claim for insurance benefits, and plaintiff had failed to demonstrate good cause for the lateness of the notice it had provided. In support of its motion, defendant submitted, among other things, a portion of its insured’s automobile insurance policy, which provided, in part: “We must be notified within 30 days, or as soon as practicable, of how, when and where the accident or loss happened.”

Plaintiff opposed the motion in part on the ground that it was untimely because it had been made more than 120 days after a notice of trial had been served. With respect to the substantive portion of the motion, plaintiff agreed that Pennsylvania law controlled, but argued that questions of fact as to whether plaintiff had given notice of the accident or loss as soon as practicable precluded summary judgment, and, in addition, that the governing policy did not require plaintiff or plaintiff’s assignor to provide a reasonable justification for its late notice. The Civil Court deemed the motion to have been timely made, but denied it on the ground that there existed a triable issue of fact as to whether defendant had been notified of the claim as soon as practicable.

We note that the record is devoid of any showing that a notice of trial, the Civil Court equivalent to a note of issue, was filed with the clerk of the Civil Court more than 120 days prior to the time when defendant made its summary judgment motion. Consequently, the motion was not shown to be untimely (see CPLR 3212 [a]).

It is undisputed that Pennsylvania law controls with respect to the substance of this controversy (see T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co., 59 Misc 3d 142[A], 2018 NY Slip Op 50665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see also Jimenez v Monadnock Constr., Inc., 109 AD3d 514, 516 [2013]). Pennsylvania insurance policies, such as the one at issue in this matter, pursuant to which an insured is required to provide the insurer with notice “as soon as practicable,” are governed by a “notice-prejudice” rule (see Lozado v Workers’ Compensation Appeal Board [Dependable Concrete Work and Uninsured Employers Guaranty Fund], 123 A3d 365, 378 [Pa Commw 2015]). Under the notice-prejudice rule, “unless the insurer establishes prejudice resulting from the insured’s failure to give notice as required under the policy, the insurer cannot avoid its contractual obligation” (Ario v Underwriting Members of Lloyd’s of London Syndicates, 996 A2d 588, 598 [Pa Commw 2010]; see Brakeman v Potomac Ins. Co., 472 Pa 66, 76-77, 371 A2d 193, 198 [1977]). The Civil Court correctly concluded that there was an unresolved issue of fact as to whether defendant had been given notice of the accident or loss as soon as practicable. In any event, as defendant’s motion papers failed to establish that it had been prejudiced by reason of the lateness of the notice it received, the Civil Court properly denied defendant’s motion.

Accordingly, the order is affirmed.

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

Decided on January 21, 2022

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, 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, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, in effect, granted plaintiff’s cross motion for summary judgment to the extent of (1) dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath and (2) awarding plaintiff partial summary judgment on liability.

ORDERED that the order, insofar as appealed from, is modified by vacating so much of the order as granted the branches of plaintiff’s cross motion seeking (1) summary judgment dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath with respect to the claims received between May 11, 2018 and June 22, 2018 and (2) partial summary judgment on liability with respect to the claims received between May 11, 2018 and June 22, 2018, and by providing that those branches of plaintiff’s cross motion are denied; 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. In an order entered February 18, 2020, the Civil Court denied defendant’s motion for summary judgment, stating that “Defendant [had] failed to issue the denials within 30 days of the second missed EUO,” and granted plaintiff’s cross motion to the extent of dismissing the affirmative defense that plaintiff failed to appear for duly scheduled EUOs and awarding plaintiff partial summary judgment on liability.

With respect to the claims received by defendant between May 11, 2018 through June 22, 2018, the record demonstrates, prima facie, that the EUO scheduling letters were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff, that plaintiff failed to appear for those EUOs, and that defendant timely denied those claims on the ground that plaintiff had failed to appear. However, as we find that a triable issue of fact exists as to whether those EUOs were scheduled to be held at a place that was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant failed to establish that it is entitled to summary judgment dismissing so much the complaint as sought to recover upon the claims received between May 11, 2018 through June 22, 2018. Consequently, neither party is entitled to summary judgment upon those claims.

While defendant further contends that the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims it received between March 22, 2018 and April 27, 2018 should have been granted and that the Civil Court erred in granting the branch of plaintiff’s cross motion seeking partial summary judgment on liability upon those claims, defendant’s argument lacks merit. The record establishes that defendant failed to timely deny those claims (see Island Life Chiropractic Pain Care, LLC v 21st Century Ins. Co., — Misc 3d &mdash, 2021 NY Slip Op 21340 [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[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Furthermore, here there is no basis to disturb so much of the order as granted plaintiff partial summary judgment as to liability upon these claims.

Accordingly, the order, insofar as appealed from, is modified by vacating so much of the order as granted the branches of plaintiff’s cross motion seeking (1) summary judgment dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath, with respect to the claims received between May 11, 2018 and June 22, 2018 and (2) partial summary judgment on liability with respect to the claims received between May 11, 2018 and June 22, 2018, and by providing that those branches of plaintiff’s cross motion are denied.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Gallo, Vitucci & Klar, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that, pursuant to Florida law, there was a lack of coverage due to the valid rescission, ab initio, of the Florida automobile insurance policy in question. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policy was renewed, about three weeks before the accident, the policyholder, who is also the assignor, did not reside, or garage the vehicle, in Florida. Plaintiff opposed the motion. By order entered March 10, 2020, the Civil Court granted the motion. On appeal, plaintiff contends that New York law, which does not permit retroactive rescission, controls and, in any event, that defendant failed to demonstrate that the insurance policy had been properly rescinded in accordance with Florida law.

Upon a review of the record, we find that the Civil Court properly applied Florida law to the substantive issue involved herein (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]). In order to demonstrate that an [*2]automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the policyholder and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Contrary to plaintiff’s arguments, in the case at bar, defendant was not required to demonstrate the basis for the retroactive rescission in support of its motion for summary judgment (see Craigg v Infinity Select Ins. Co., 38 Misc 3d 56, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

As defendant’s motion papers demonstrated that a rescission notice was sent to the policyholder, and that defendant had returned all premiums paid to the policyholder within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co., 68 Misc 3d 129[A], 2020 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d at 179). Plaintiff failed to raise a triable issue of fact in opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered October 7, 2019. The order denied as untimely defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on June 14, 2018. On October 12, 2018, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant’s motion was untimely. By order entered October 7, 2019, the Civil Court denied defendant’s motion on the ground that it was untimely.

Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 17, 2021

APPEARANCES OF COUNSEL

Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel) for appellant.

Goldman Law Offices (Anna Goldman of counsel) for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of the branches of defendant’s motion seeking to, in effect, vacate the order entered April 20, 2017, granting plaintiff’s motion to enter a default judgment and, upon such vacatur, to dismiss the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant did not appear or answer the complaint. By order entered April 20, 2017, the Civil Court (Susan Quirk, J.) granted, on default, plaintiff’s motion to enter a default judgment. In September 2017, defendant moved to, among other things, in effect, vacate the April 20, 2017 order, alleging that it had not received plaintiff’s motion, and, upon such vacatur, to dismiss the complaint for lack of personal jurisdiction. Plaintiff opposed the motion. As limited by its brief, defendant appeals from so much of an order entered July 12, 2019, as denied the foregoing branches of defendant’s motion.

“It is axiomatic that the failure to serve process in an action leaves the court without [*2]personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013] [internal quotation marks omitted]). Lack of personal jurisdiction, and thus the question of whether there ever was a default, is a “threshold issue” (McSpedon v Levine, 158 AD3d 618, 620 [2018]). Here, defendant submitted a detailed affidavit by the claims clerk alleged to have received service of process, which affidavit was sufficient to rebut the{**74 Misc 3d at 43} process server’s affidavit and raise an issue of fact necessitating a traverse hearing (see Cautious Care Med., P.C. v 21st Century Ins. Co., 72 Misc 3d 140[A], 2021 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

We note that, while CPLR 3215 (c) requires a plaintiff which seeks to enter a default judgment more than one year after the default to show sufficient cause why the complaint should not be dismissed, on the record before us, there is no basis to find that plaintiff herein failed to make such a showing. Plaintiff’s motion papers are not included in the record and defendant did not raise this argument in the Civil Court.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of the branches of defendant’s motion seeking to, in effect, vacate the order entered April 20, 2017, granting plaintiff’s motion to enter a default judgment and, upon such vacatur, to dismiss the complaint.

Weston, J. (concurring in part and dissenting in part, and voting to reverse the order, insofar as appealed from, and grant the branches of defendant’s motion seeking to vacate the order entered April 20, 2017, and to dismiss the complaint as abandoned). On or about December 10, 2010, plaintiff, a provider, commenced this action seeking to recover assigned first-party no-fault benefits. Seven years later, plaintiff moved for the entry of a default judgment, which motion was granted. Plaintiff alleged that defendant was served on or about December 16, 2010, by leaving a copy of the summons and complaint with an authorized agent for the corporation. The April 20, 2017 order granting the entry of a default judgment makes no mention that any excuse for the delay was offered or that good cause was shown.

In September 2017, defendant moved to vacate the April 20, 2017 order on the grounds that defendant was not personally served. An affidavit from the person allegedly served denying service was attached to the papers. Further, pursuant to CPLR 5015 (a) (1), defendant asserted that the lack of service provided a reasonable excuse for the default and submitted a meritorious defense to the action.

It is well settled that “[w]hen a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned” (Solano v Castro, 72 AD3d 932, 932-933 [2d Dept 2010]; see CPLR 3215 [c]; Perricone v City of New York, 62 NY2d 661, 663 [1984];{**74 Misc 3d at 44} Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2d Dept 2008]; Mattera v Capric, 54 AD3d 827 [2d Dept 2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2d Dept 2005]; Monzon v Sony Motor, 115 AD2d 714 [2d Dept 1985]). The procedure for obtaining a default judgment is plainly set forth in CPLR 3215 (c). CPLR 3215 (c) provides

“[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the [*3]complaint should not be dismissed” (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 750 [2d Dept 2014]; see also Baruch v Nassau County, 134 AD3d 658, 659 [2d Dept 2015]).

“The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215 [c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2d Dept 2011]; see Bank of N.Y. v Kushnir, 150 AD3d 946 [2d Dept 2017]; Butindaro v Grinberg, 57 AD3d 932 [2d Dept 2008]; County of Nassau v Chmela, 45 AD3d 722 [2d Dept 2007]). It is not necessary that a motion to dismiss be made, since the statute provides the court with the authority not to enter judgment on an abandoned complaint. The court on its own initiative should dismiss the complaint in the absence of compliance with the statute (see U.S. Bank, N.A. v Laulicht, 176 AD3d 892, 893 [2d Dept 2019]; Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963 [2d Dept 2018]).

Here, it is undisputed that plaintiff failed to seek entry of a judgment within one year of the alleged default. There is no explanation for this failure in the record. The court below should not have entered judgment in favor of plaintiff, but rather should have dismissed the complaint as abandoned. Inasmuch as defendant now seeks to vacate the order granting entry of a default judgment, the mandatory language of CPLR 3215 (c) requires the dismissal of the complaint.

Moreover, the authority for this court to dismiss the complaint is plain. Pursuant to CPLR 3215 (c), the court upon its own initiative can dismiss an action which has been deemed abandoned. In Perricone v City of New York (62 NY2d at 663), the Court noted:{**74 Misc 3d at 45}

“Having failed to comply with the statutory requirements, plaintiff’s complaint was dismissed by the Appellate Division and we find no legal error in that decision. (See Chin v Hooker, 95 AD2d 790; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660.)

“Plaintiff’s argument that the city waived its right to move for dismissal of the complaint is unpersuasive inasmuch as the Appellate Division exercised its authority under CPLR 3215 (subd [c]) and dismissed the complaint on its own initiative. Nor can plaintiff be heard to complain that he had no notice that the Appellate Division intended to act pursuant to the statute and, therefore, had no opportunity to demonstrate sufficient cause why the complaint should not be dismissed. Plaintiff was aware for more than ten years that the city had not answered, yet failed to move for a default judgment.”

Under the circumstances presented here, the seven-year delay in proceeding to enter judgment after the default should not be excused. The motion for the entry of a default judgment should have been denied (see Shinn v City of New York, 65 AD3d 621, 622-623 [2d Dept 2009]; Butindaro v Grinberg, 57 AD3d at 933; Staples v Jeff Hunt Devs., Inc., 56 AD3d at 460; Mattera v Capric, 54 AD3d at 828). A traverse hearing would not resolve the underlying delay by plaintiff in seeking a default judgment and the consequences of CPLR 3215 (c) thereto. Accordingly, defendant’s motion to vacate the April 20, 2017 order should be granted and the complaint dismissed.

Toussaint, J.P., and Elliot, J., concur; Weston, J., concurs in part and dissents in part in a separate memorandum.