The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 23, 2015. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment dismissing the complaint, and, sua sponte, awarded defense counsel $250 in “fees.”

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, awarded defense counsel $250 in “fees” is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is modified by vacating so much thereof as, sua sponte, awarded defense counsel $250 in “fees”; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff appeals from an order of the Civil Court which denied its motion, granted defendant’s cross motion, and, sua sponte, awarded defense counsel $250 in “fees.”

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In support of its cross motion, defendant submitted a sworn peer review report which [*2]set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff’s remaining contention regarding defendant’s cross motion lacks merit, plaintiff has not provided any basis to disturb so much of the Civil Court’s order as granted defendant’s cross motion.

However, a court’s sua sponte award of costs to, or imposition of sanctions against, a party or an attorney may be made only “after a reasonable opportunity to be heard” (22 NYCRR 130-1.1 [d]; see Hester v Hester, 121 AD3d 645 [2014]; Matter of Ariola v Delaura, 51 AD3d 1389 [2008]; Hines v RAP Realty Corp., 254 AD2d 330, 331 [1998]; see also Deeb v Tougher Indus., 216 AD2d 667, 668 [1995]).^[FN1] As the Civil Court failed to provide such an opportunity, so much of the order as, sua sponte, awarded defense counsel $250 in “fees” is vacated (see Hester v Hester, 121 AD3d 645).

Accordingly, the order is modified by vacating so much thereof as, sua sponte, awarded defense counsel $250 in “fees.”

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

Footnotes

Footnote 1:It is unlikely that the Civil Court intended to award motion costs, since the court is limited to awarding an amount not in excess of $50 (see CCA 1906 [a]) and since such an award is generally made to a party in the litigation and not to counsel.

Decided on November 9, 2018

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

Decided on November 9, 2018

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

Decided on November 9, 2018

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

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

Advanced Recovery Equipment and Supplies, LLC, as Assignee of Yvrose Joseph, Respondent,

v

Park Insurance Company, Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 9, 2016. 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

[*1]

Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Paul Barrett of counsel), for appellant.

Jones Jones LLC, New York, NY (Jacqueline R. Mancino of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 5, 2016, the petitioner appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered February 3, 2017. The order denied the petition to vacate the arbitration award.

Ordered that the order is affirmed, with costs.

This appeal involves an award pursuant to the mandatory arbitration provision of Insurance Law § 5105, which governs certain disputes regarding loss transfers between insurers and compensation providers. The respondent, New York City Transit Authority (hereinafter NYCTA), sought reimbursement from the petitioner, Progressive Advanced Insurance Company (hereinafter Progressive), for workers’ compensation benefits that NYCTA had paid in lieu of first party benefits. NYCTA paid the funds to its employee, who was a passenger in an NYCTA vehicle that was involved in a collision with a vehicle operated by Progressive’s insured. Progressive admitted that its insured was 100% at fault in the happening of the collision; the only issue at arbitration related to the amount of damages NYCTA was entitled to recoup pursuant to the loss transfer provision.

The arbitrator determined that a 20% no-fault offset set forth in Insurance Law § 5102 (b) did not apply to the workers’ compensation wages portion of the benefits NYCTA had paid, because a one-third offset had already been applied to the wages pursuant to the Workers’ Compensation Law. Progressive commenced this proceeding pursuant to CPLR article 75 to vacate the arbitration award, and the Supreme Court denied the petition. Progressive appeals.

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105 [b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see [*2]Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758 [1980]).

Here, the arbitrator’s determination was supported by a “reasonable hypothesis” and cannot be said to be arbitrary or capricious (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d at 758-759).

Accordingly, we agree with the Supreme Court’s determination to deny the petition to vacate the arbitration award. Mastro, J.P., Roman, Duffy and Brathwaite Nelson, JJ., concur.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent. Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 18, 2015 and May 26, 2016, respectively. The order entered May 18, 2015 granted the branch of defendant’s motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross motion, in effect, to amend the complaint. The order entered May 26, 2016 denied plaintiff’s motion for leave to reargue.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered May 18, 2015 is affirmed, with $25 costs; and it is further,

ORDERED that the appeal from the order entered May 26, 2016 is dismissed, as no appeal lies from an order denying reargument (see Andre v City of New York, 47 AD3d 605 [2008]; DeFreitas v Board of Educ. of City of Mount Vernon Dist. No. 416, 129 AD2d 672 [1987]).

Prior to the commencement of this action by a provider to recover assigned first-party no-fault benefits arising out of injuries allegedly sustained by its assignor in a motor vehicle accident on August 3, 1999, the provider had submitted claims, involving the same assignor and the same motor vehicle accident, to arbitration. The arbitrator found that the provider had failed to prove its standing to sue, as the provider’s proof was insufficient to establish that the signers of the claim forms were the provider’s employees rather than independent contractors. The arbitrator’s award, dated September 10, 2003, dismissed the claim “without prejudice to the Applicant’s right [*2]to initiate a new arbitration with supplementary proofs.” There was no new arbitration or any application to vacate or modify the award.

On March 8, 2005, plaintiff commenced the instant action in the Civil Court. Defendant answered, asserting, as an affirmative defense, that plaintiff had previously elected to arbitrate its claims. Plaintiff filed a notice of trial in 2008, but, upon defendant’s motion, the Civil Court vacated the notice of trial. In 2014, the Civil Court granted a motion by plaintiff to restore the action to the trial calendar and directed plaintiff to file a new notice of trial. Defendant moved in the same year to dismiss the complaint, pursuant to CPLR 3211 (a) (3) and (5) or, in the alternative, for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims, as plaintiff, prior to commencing this action, had elected to arbitrate them. In opposition, plaintiff argued that defendant’s motion was untimely, and that, contrary to defendant’s contention, plaintiff’s action was not barred, as there was no indication that plaintiff was litigating the same bills that had been submitted to arbitration and because the merits of the claims had not been reached in arbitration. Plaintiff cross-moved, in effect, to amend the amount sought in the complaint. By order entered May 18, 2015, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross motion, on the ground that plaintiff had elected arbitration as the forum for resolution of its claims. Plaintiff’s subsequent motion for leave to reargue was denied by order entered May 26, 2016.

Plaintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident (see Roggio, 66 NY2d 260; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). There is no merit to plaintiff’s argument that defendant’s motion should have been denied because defendant failed to demonstrate that the bills which are the subject of the present action were the same ones which had been submitted to arbitration. “[A] claimant disappointed in the pursuit of medical expense reimbursement in arbitration cannot, on the next rejected bill arising from the same accident, then look to the courts” (Roggio, 66 NY2d at 263). We find that the branch of defendant’s motion seeking summary judgment was timely, as plaintiff’s first notice of trial had been vacated (see Farrington v Heidkamp, 26 AD3d 459 [2006]), and defendant made its motion within 120 days after plaintiff had filed its second notice of trial upon the direction of the Civil Court (see CPLR 3212 [a]). Plaintiff’s argument, that defendant had waived its Roggio defense, is not properly before us, as it is raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider it. Upon the record presented, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Accordingly, the order entered May 18, 2015 is affirmed and the appeal from the order entered May 26, 2016 is dismissed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant, defendant moved for summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 on the ground that that portion of the action is premature because plaintiff had failed to provide requested verification. Plaintiff appeals from so much of an order of the Civil Court entered January 27, 2016 as granted that branch of defendant’s motion.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that so much of the complaint as sought to recover the sum of $3,399.51 is premature because it had properly mailed the verification requests at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff further argues, the affidavit submitted by plaintiff in [*2]opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether that portion of the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.

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

Decided on November 2, 2018

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

Rivkin Radler, LLP (Stuart M. Bodoff 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 (Harriet L. Thompson, J.), entered December 16, 2015. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 16, 2015, the Civil Court denied defendant’s motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was “Defendant’s practices and procedures regarding its receipt of mail in Atlanta, Georgia.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider 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 provider, that the provider had [*2]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]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff does not challenge that defendant demonstrated its prima facie entitlement to summary judgment, but rather argues that plaintiff raised a triable issue of fact in opposition. However, as plaintiff’s argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment. We further note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

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