Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. Lewin & Baglio, LLP (Michael Nathan and William Benson of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated August 1, 2022, deemed from a judgment of that court entered October 24, 2022 (see CPLR 5512 [a]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,018.77.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,018.77. At the outset of the trial, the parties stipulated that the sole issue for trial was whether the services at issue were medically necessary.

In a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Dayan [*2]v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Here, the record supports the determination of the Civil Court that, based upon its assessment of the credibility of the expert witnesses and the proof adduced at trial, plaintiff sufficiently established by a preponderance of the evidence that the services at issue were medically necessary. Consequently, we find no basis to disturb the Civil Court’s findings.

Accordingly, the judgment is affirmed.

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

[*1]

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Jennifer B. Ettenger of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, NY (Damin J. Toell of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 16, 2020. The order affirmed an order of the Civil Court of the City of New York, Kings County (Robin K. Sheares, J.), entered July 20, 2018, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiff’s cross-motion for summary judgment on the complaint.

Ordered that the order dated October 16, 2020, is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiff’s cross-motion for summary judgment on the complaint is denied, and the order entered July 20, 2018, is modified accordingly.

The plaintiff, a medical provider, commenced this action, as assignee of no-fault insurance benefits, against the defendant insurer for a judgment in the amount of its claims for medical services provided to the insured. The defendant moved for summary judgment dismissing the complaint, arguing that it was not obligated to pay the no-fault benefits to the plaintiff because the insured assignor failed to appear at three scheduled examinations under oath (hereinafter EUOs). The plaintiff cross-moved for summary judgment on the complaint. By order entered July 20, 2018, the Civil Court denied the defendant’s motion and granted the plaintiff’s cross-motion, and, by order dated October 16, 2020, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed. The defendant appeals, by permission, from the order dated October 16, 2020.

“Upon receipt of one or more of the prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request ‘any additional verification required by the insurer to establish proof of claim’ ” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007], quoting 11 NYCRR 65-3.5 [b]). “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b] [emphasis added]). “The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath[*2]. . . is a material breach of the policy, precluding recovery of the policy proceeds” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020] [internal quotation marks omitted]; see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing that its letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at the scheduled EUOs, that it timely and properly followed up pursuant to 11 NYCRR 65-3.6 (b), and that it ultimately issued a timely and proper denial of the claims following the insured’s failure to appear at the last scheduled EUO (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; 65-3.8 [a]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 756; Interboro Ins. Co. v Clennon, 113 AD3d at 597). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted, and the plaintiff’s cross-motion for summary judgment on the complaint should have been denied.

The defendant’s remaining contention need not be reached in light of our determination. Barros, J.P., Iannacci, Miller and Zayas, JJ., concur.

[*1]

The Rybak Firm, PLLC, New York, NY (Damin J. Toell of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants First Spine Chiropractic of NY, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., Jules Francois Parisien, Longevity Medical Supply, Inc., and NYC Madison Avenue Medical, P.C., appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered May 1, 2020. The order and judgment, insofar as appealed from, granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, and declared that certain motor vehicle collisions were intentional and that the plaintiffs are not obligated to pay certain no-fault claims related to those collisions.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

In August 2018, the plaintiffs, both automobile insurance carriers, commenced this action, inter alia, for a judgment declaring that certain collisions involving insured motor vehicles were intentional acts and that they therefore had no duty to pay no-fault claims relating to those collisions. On July 29, 2019, the Supreme Court entered a judgment on default against a number of the defendants, including the insured individuals, and declared, among other things, that the collisions were intentional acts, and the plaintiffs had no duty to pay related no-fault claims.

Thereafter, the plaintiffs moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants First Spine Chiropractic of NY, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., Jules Francois Parisien, Longevity Medical Supply, Inc., and NYC Madison Avenue Medical, P.C. (hereinafter collectively the appellants). In an order and judgment entered May 1, 2020, the Supreme Court, inter alia, granted that branch of the plaintiffs’ motion and declared that the collisions were intentional acts and that the plaintiffs were not obligated to pay the no-fault claims the appellants submitted to them relating to the collisions. This appeal ensued.

The appellants failed to demonstrate that the plaintiffs’ motion was premature since they failed to identify any evidence within the plaintiffs’ exclusive control which was essential to their defense. Instead, the appellants were merely hopeful that further discovery would lead to evidence which would support their opposition to the motion (see CPLR 3212 [f]; Santiago v City [*2]of New York, 191 AD3d 715 [2021]; Blake v City of New York, 148 AD3d 1101 [2017]). Accordingly, the appellants failed to establish that the motion should be denied on that basis.

An intentionally caused or staged vehicular collision is not a covered accident under an insurance policy (see National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2022]). When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third parties (see Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2014]). Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by proffering evidence that the collisions were intentional. Specifically, the plaintiffs proffered evidence that the insured individuals procured the subject insurance policies fraudulently and that the collisions occurred under similar circumstances. In both collisions, the insured individuals were not in the insured vehicles at the relevant time, the insured vehicles struck a UPS truck while exiting a parking space, the individuals involved in the collisions were all closely interrelated, and all of the individuals allegedly injured in the collisions sought treatment from the same healthcare providers. In opposition, the appellants failed to raise a triable issue of fact.

The appellants also failed to establish that the plaintiffs’ evidence was inadmissible. The plaintiffs met their burden to support their motion with admissible evidence by including affidavits from witnesses personally knowledgeable about material facts (see CPLR 3212 [b]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). The witnesses also laid appropriate foundations for certain business records (see CPLR 4518 [a]; U.S. Bank N.A. v Zakarin, 208 AD3d 1275 [2022]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the appellants and declared that the collisions were intentional and the plaintiffs were not obligated to pay no-fault claims relating to the collisions.

In light of the foregoing, we need not reach the appellants’ remaining contention. Brathwaite Nelson, J.P., Rivera, Ford and Taylor, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 2, 2021. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In January 2018, plaintiff Horizon P.T. Care, P.C. (Horizon) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover assigned first-party no-fault benefits for services it rendered to its assignor for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. After issue was joined, Horizon moved for, among other things, summary judgment. State Farm cross-moved for summary judgment dismissing the complaint on the separate grounds that Horizon had failed to appear for duly scheduled examinations under oath (EUOs), and that four of Horizon’s causes of action were barred by a declaratory judgment issued by the Supreme Court, Nassau County, in a December 2015 declaratory judgment action commenced by State Farm against Horizon in regard to the same March 2015 accident. Following Horizon’s default in appearing in the Supreme Court action, judgment was entered in July 2016, which declared that “Horizon . . . has no right to receive payment for the bills submitted to STATE FARM and listed in Exhibit ‘1’ of the . . . summons and verified complaint.” By order entered August 2, 2021, the Civil Court denied Horizon’s motion and granted State Farm’s cross motion for summary judgment dismissing the complaint on the ground that State Farm had established that Horizon failed to appear for duly scheduled EUOs.

State Farm’s cross-moving papers in the Civil Court sufficiently established that the assignor, claims, date of loss and dates of service relevant to Horizon’s first, third, fourth, and seventh causes of action in the case at bar are the same as those referenced in the Supreme Court declaratory judgment action. For the reasons stated in Horizon P.T. Care, P.C. v State Farm [*2]Mut. Auto. Ins. Co. (— Misc 3d —, 2023 NY Slip Op 50295 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), those causes of action were barred under the doctrine of res judicata, thereby obviating any need for this court to independently review them. The Civil Court thus properly granted the branches of State Farm’s cross motion seeking summary judgment dismissing those causes of action, albeit on grounds different from those relied upon by the Civil Court.

With respect to Horizon’s remaining causes of action—the second, fifth, and sixth—contrary to Horizon’s contention, the affidavits of State Farm’s employees were sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of State Farm’s cross motion seeking summary judgment dismissing those causes of action.

Accordingly, the order is affirmed.

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

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), dated July 22, 2022. The order, insofar as appealed from, 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 April 10, 2018 through May 23, 2018.

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 moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order entered July 22, 2022, insofar as appealed from, the Civil Court 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 April 10, 2018 through May 23, 2018.

The Civil Court also found, in effect pursuant to CPLR 3212 (g), that defendant had established the proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for EUOs scheduled on June 8, 2018 and September 14, 2018. The Civil Court further found that there was an issue of fact as to whether an EUO scheduled to be [*2]held between those dates, on July 13, 2018, was mutually rescheduled, and therefore whether defendant’s September 17, 2018 denials of the claims for services rendered April 10, 2018 through May 23, 2018 were timely. In other words, defendant’s entitlement to summary judgment is dependent upon whether plaintiff’s second nonappearance at a scheduled EUO, triggering the requirement to pay or deny the claims within 30 days thereof (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., 77 Misc 3d 15 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., 77 Misc 3d 129[A], 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 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]), occurred on July 13, 2018 or September 14, 2018.

“A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50621[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In their appellate briefs, each party contended that the July 13, 2018 EUO was not mutually rescheduled, and the record reflects that, while plaintiff’s counsel requested that it be rescheduled for September 14, 2018, defendant’s counsel, instead of agreeing to such a request, proceeded with the scheduled July 13, 2018 EUO and placed a statement on the record documenting the nonappearance. Defendant’s denial of claim forms were based, in part, on the failure of plaintiff to appear for the July 13, 2018 EUO. Thus, as the parties argue, the record establishes that the July 13, 2018 EUO was not mutually rescheduled.

Defendant contends that although its September 17, 2018 denials were issued well after 30 days had passed from plaintiff’s second nonappearance on July 13, 2018 (see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]), its denials were nonetheless timely. Defendant notes in its brief that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]), and argues that it was abiding by that principle because it accommodated plaintiff’s request to schedule an EUO to be conducted on September 14, 2018. Thus, defendant contends, the facts herein are distinguishable from Quality Health Supply Corp. (2020 NY Slip Op 51226[U]). Defendant’s argument has previously been considered by this court and rejected (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., 77 Misc 3d 15; FJL Med. Servs., P.C. v Nationwide Ins., 2022 NY Slip Op 51213[U]).

As defendant has not demonstrated that its September 17, 2018 denials were timely, it has not established that it is not precluded from raising plaintiff’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Thus, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered April 10, 2018 through May 23, [*3]2018 was properly denied.

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

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

VENTURA, J., taking no part.

Decided on March 24, 2023

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

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 (Patria Frias-Colón, J.), dated April 12, 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 affirmed, with $25 costs.

In January 2018, plaintiff Horizon P.T. Care, P.C. (Horizon) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover assigned first-party no-fault benefits for services Horizon rendered to its assignor for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. Defendant moved for summary judgment dismissing the complaint on the ground that the Civil Court action was barred by a declaratory judgment issued by the Supreme Court, Nassau County, in a December 2015 declaratory judgment action commenced by State Farm against Horizon in regard to the same March 2015 accident. Following Horizon’s default in appearing in the Supreme Court action, a judgment was entered in July 2016, which declared that “Horizon . . . has no right to receive payment for the bills submitted to STATE FARM and listed in Exhibit ‘1’ of the . . . summons and verified complaint.” Plaintiff opposed the motion in the Civil Court and cross-m[*2]oved for summary judgment. The Civil Court, by order dated April 12, 2021, granted defendant’s motion and denied the cross motion.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). ” ‘A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised . . . in the prior action’ ” (Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2020], quoting Eaddy v US Bank N.A.,180 AD3d 756, 758 [2020]; see North Val. Med., P.C. v Permanent Gen. Assur. Corp., 74 Misc 3d 127[A], 2022 NY Slip Op 50048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Defendant demonstrated that the assignor, date of loss, and dates of service in the Supreme Court action were identical to those listed in the complaint in this action. Moreover, the affidavit of defendant’s claims specialist adequately explained that the monetary amounts for certain claims differed between the complaints in the two actions due to mathematical errors in plaintiff’s claim forms and demonstrated that the charges were actually the same. Thus, contrary to plaintiff’s argument, defendant established that the claims at issue in this action are the same as those referenced in the Supreme Court declaratory judgment, which rendered a final adjudication of those claims (see Ciraldo, 140 AD3d at 913). Consequently, this action was barred under the doctrine of res judicata and the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), since any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order is affirmed.

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

Decided on March 3, 2023

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

Decided on February 24, 2023

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.

Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 15, 2019. The order granted defendant’s motion to vacate a judgment entered January 26, 2019 pursuant to a default under a stipulation of settlement.

ORDERED that the order is reversed, with $30 costs, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement which provided that defendant would pay plaintiff the total sum of $2,523.02. Plaintiff accepted from defendant three checks dated 45 days after the stipulation of settlement. Thereafter, plaintiff applied for a default judgment, alleging that defendant had failed to timely make the payment. Plaintiff provided a signed copy of the purported stipulation of settlement which set forth that defendant was to make the payment within 21 days. A judgment was entered against defendant. Defendant moved to vacate the judgment, asserting that its payment was timely. Defendant provided a signed copy of the purported stipulation of settlement which contained a handwritten notation setting forth that [*2]defendant was to make the payment within 45 days. After oral argument, but without holding a hearing, the Civil Court granted defendant’s motion.

In light of the apparent factual dispute regarding the terms of the stipulation of settlement and defendant’s compliance with them, it was error for the Civil Court to grant defendant’s motion without holding a hearing to determine the disputed issues of fact (see Midland Funding, LLC v Dort, 39 Misc 3d 151[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also U.S. Equities Corp. v Ridwan, 71 Misc 3d 138[A], 2021 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

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