Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51720(U))

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2246 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 25, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking (1) summary judgment dismissing the first three causes of action, stating that the only claims remaining were for $80 and $569.66, and (2) to compel plaintiff to comply with defendant’s discovery demands.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands is denied and by striking so much of the order as stated that claims for $80 and $569.66 remained, and, upon searching the record, the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action, which sought interest and attorney’s fees, is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint sets out four causes of action, seeking $2,998.64, $813.80, $222.76, and interest and attorney’s fees, respectively. Plaintiff moved for summary judgment, attaching a bill for $2,998.64, for [*2]services rendered September 7, 2011 through January 1, 2012, a bill for $813.80 for services rendered January 17, 2012 through February 13, 2012, and a bill for $222.76 for services rendered April 5, 2012 through April 17, 2012. Defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to comply with defendant’s discovery demands. By order entered July 25, 2014, the Civil Court denied plaintiff’s motion for summary judgment, found that defendant had established certain payments and granted the branches of defendant’s cross motion seeking summary judgment “as to [those] amounts,” stated that the only claims remaining were $80 for an office visit on August 8, 2011 and $569.66 for services rendered August 26, 2011 through September 8, 2011, and granted the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands.

On appeal, plaintiff fails to explicitly raise any argument with respect to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint. The claims for $80, for an office visit on August 8, 2011, and $569.66, for services rendered August 26, 2011 through September 8, 2011, which the Civil Court specifically stated were to remain for trial, and upon which plaintiff seeks summary judgment on appeal, were not part of the complaint or, for that matter, the basis for plaintiff’s motion for summary judgment. Thus, so much of the order as stated that claims for $80 and $569.66 remained is stricken.

Plaintiff makes a mailing argument which appears to be limited to the denial of the $80 claim, which argument we do not pass upon because that claim is not part of this action. To the extent that plaintiff’s argument was meant to apply to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, we find that the argument lacks merit.

As the Civil Court awarded defendant summary judgment dismissing all of plaintiff’s causes of action seeking to recover on unpaid claims, and plaintiff has not provided a basis to disturb that part of the order, the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands is moot and, upon searching the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that defendant is entitled to summary judgment dismissing the fourth cause of action, which sought interest and attorney’s fees.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands is denied and by striking so much of the order as stated that claims for $80 and $569.66 remained, and, upon searching the record, the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action, which sought interest and attorney’s fees, is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.