Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Mandell and Santora (Michael J. Rago, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 29, 2015. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.

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 answered the complaint and served demands for discovery, including a notice to take the deposition of plaintiff. Upon plaintiff’s failure to appear, defendant moved to, among other things, compel plaintiff’s treating doctor to attend a deposition or to preclude plaintiff from offering evidence at trial. By order entered April 20, 2015, the Civil Court, insofar as is relevant to this appeal, found that, upon plaintiff’s establishment of a prima facie case, the sole issues for trial would be limited to the medical necessity of the services rendered and whether the claims had been properly billed in accordance with the workers’ compensation fee schedule. The court directed defendant to serve another notice of deposition and stated that plaintiff’s failure to appear would result in the preclusion of testimony at trial with respect to medical necessity and the fee schedule. Defendant did not appeal from the order entered April 20, 2015. Thereafter, defendant moved, pursuant to CPLR 3126 (3), to dismiss the complaint on the ground that plaintiff had failed to comply with the demand for a deposition. Plaintiff opposed the motion and argued that the prior order of the Civil Court had not provided for dismissal of the complaint as a penalty for noncompliance. Defendant appeals from so much of an order of the Civil Court entered September 29, 2015 as denied defendant’s motion to dismiss the complaint. The order also precluded plaintiff from offering testimony at trial pertaining to the medical necessity of the services rendered and whether the services had been billed in accordance with the workers’ compensation fee schedule.

While defendant argues that the complaint should have been dismissed, ” a trial court is [*2]given broad discretion to oversee the discovery process’ ” (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). The determination of the nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling disclosure lies within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]; Jaffe v Hubbard, 299 AD2d 395 [2002]). The motion court’s determination of whether to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR, and the terms and conditions of any sanctions imposed, should not be disturbed on appeal absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]).

Upon a review of the record before us, we find that the Civil Court did not improvidently exercise its discretion in declining to dismiss the complaint and, instead, precluding plaintiff’s testimony at trial with respect to the medical necessity of the services rendered and whether the claims had been properly billed in accordance with the workers’ compensation fee schedule (see CPLR 3126 [2]).

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

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

Decided on September 15, 2017

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

Matthew Brew & Associates, LLC (Matthew Brew, Esq.), for appellant. Law Office of Cohen & Jaffe, LLP (Aaron J. Perretta, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulyssses Bernard Leverett, J.), entered July 22, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

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 it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion and, upon denying plaintiff’s cross motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit from the doctor who was to perform the IMEs which failed to demonstrate upon personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), that plaintiff’s assignor had failed to appear for the IMEs. Thus, defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720).

Furthermore, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2014]).

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

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

Decided on September 15, 2017

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

Decided on September 15, 2017

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 2, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through fourth, sixth and seventh causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action 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, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first through fourth, sixth and seventh causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that they were premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant demonstrated prima facie that it had not received the requested verification and, thus, that the causes of action at issue are premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant’s cross 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the causes of action at issue are 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 [*2]Dists 2015]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action are denied.

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, fifth, sixth and seventh causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.

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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, fifth, sixth and seventh causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.

Contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to raise an issue of fact as to whether defendant had ever received the claims underlying the third and fourth causes of action; thus, the Civil Court correctly denied the branches of plaintiff’s motion seeking summary judgment on these causes of action.

For the reasons stated in Compas Med., P.C., as Assignee of Pierre, Jean v American Tr. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1830 Q C], decided herewith), we find that the remainder of the order, insofar as appealed from, was also correctly [*2]decided.

In light of the foregoing, plaintiff’s remaining contentions are academic.

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

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth and fifth causes of action, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.

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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth and fifth causes of action, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.

Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which issue must be resolved [*2]in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Arce Med. & Diagnostic Svce, 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U]; Jamaica Med. Supply, Inc., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]).

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

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

Decided on September 15, 2017

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 1, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action.

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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action on the ground, among others, that defendant had not received timely notice of the accident.

Contrary to plaintiff’s argument on appeal, the proof submitted by defendant was sufficient to raise an issue of fact as to whether defendant had ever received the claim underlying the fifth cause of action; thus, the Civil Court correctly denied the branch of plaintiff’s motion seeking summary judgment on this cause of action.

For the reasons stated in Compas Med, P.C. as Assignee of Grandoit, Andre v American Tr. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1826 Q C], decided herewith), the Civil Court correctly granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action.

In view of the foregoing, plaintiff’s remaining arguments are academic.

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

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