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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 16, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits for injuries plaintiff’s assignor had sustained in a motor vehicle accident in July 2007, plaintiff moved to compel discovery. Thereafter, the parties entered into a so-ordered stipulation, dated July 25, 2008, pursuant to which defendant was to provide plaintiff with responses to its interrogatories within 60 days “or be precluded from offering evidence at trial.”

In 2009, defendant commenced a declaratory judgment action in Supreme Court, Nassau County, against, among others, plaintiff and its assignor, in regard to a number of accidents, including the July 2007 accident. The Supreme Court issued a stay of all pending and future actions between the parties in February 2009. On June 15, 2010, a default declaratory judgment was entered in the Supreme Court in favor of defendant, finding, among other things, that the policy in connection with plaintiff’s claim is “null and void,” that defendant had no duty to provide coverage for the subject no-fault claim, and that since plaintiff and its assignor had “violated their respective obligation [sic] to appear for an examination under oath . . . [defendant] has no duty to defend or indemnify [plaintiff and its assignor] . . . for any claims of personal injury, no-fault, UM or SUM benefits.”

In 2011, plaintiff moved, in the Civil Court action, for a final order of preclusion and summary judgment. Defendant cross-moved for summary judgment dismissing the Civil Court complaint on the ground that the June 15, 2010 declaratory judgment had res judicata effect. Thereafter, by order dated September 16, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter [*2]once it is duly decided (see Siegel, NY Prac § 442, at 747 [4th ed]). Res judicata, or claim preclusion, is invoked when a party, or those in privity with the party, seek to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction or series of transactions which were raised or could have been raised in the prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). It is well settled that default judgments can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Although the conditional preclusion order contained in the July 2008 so-ordered stipulation became absolute upon defendant’s failure to comply therewith (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Coleman v Thompson, 5 Misc 3d 136[A], 2004 NY Slip Op 51543[U] [App Term, 2d & 11th Jud Dists 2004]), thereby precluding defendant “from offering evidence at trial,” it did not preclude the Civil Court from giving res judicata effect to the June 10, 2010 declaratory judgment (see e.g. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; Ptasznik v Schultz, 247 AD2d 197, 198 [1998]).

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

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: August 21, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered November 23, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or [*2]affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Insofar as is relevant to this appeal, defendant submitted affirmed peer review reports, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant established its prima facie entitlement to summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant’s showing that the supplies at issue were not medically necessary was unrebutted by plaintiff (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and, on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause [*3]why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 6, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or [*2]affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Insofar as is relevant to this appeal, defendant submitted affirmed peer review reports, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant established its prima facie entitlement to summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant’s showing that the supplies at issue were not medically necessary was unrebutted by plaintiff (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and, on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause [*3]why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered October 6, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished on December 24, 2008 is granted; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to appellant; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 [*2]NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued a claim denial that was conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the supplies furnished on October 13, 2008, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for these supplies. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, this branch of defendant’s cross motion was properly denied.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for medical supplies furnished on December 24, 2008, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these medical supplies on the ground, among others, that the supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy, which the peer reviewer stated was sufficient. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for medical supplies furnished on December 24, 2008 should been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A]; 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 [*3]NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for supplies furnished on December 24, 2008 is granted and, upon the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 28, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is affirmed, without costs; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order
should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an [*2]affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued a claim denial that was conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of its cross motion, defendant submitted a sworn peer review report and an affirmed peer review report, each of which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is affirmed, and, on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such [*3]sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered November 21, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished on October 8, 2008 is granted to the extent of dismissing so much of the complaint as sought to recover for an “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to appellant; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona [*2]Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued a claim denial that was conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the supplies furnished on August 8, 2008 and the infrared heat lamp furnished on October 8, 2008, defendant submitted sworn peer review reports which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for these supplies. In opposition to defendant’s motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager furnished on October 8, 2008, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies on the ground, among others, that these supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy, which the peer reviewer stated rendered these supplies excessive and “concurrent treatment.” In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager furnished on October 8, 2008 should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op [*3]50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished on October 8, 2008 is granted to the extent of dismissing so much of the complaint as sought to recover for an “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager, and, on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered October 25, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished on January 2, 2009 is granted to the extent of dismissing so much of the complaint as sought to recover for an “E.M.S.,” “EMS Accessories,” and “EMS Supply;” as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to appellant; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona [*2]Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued a claim denial that was conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the supplies furnished on August 8, 2008 as well as the back massager and infrared heat lamp furnished on January 2, 2009, defendant submitted sworn peer review reports which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for these supplies. In opposition to defendant’s motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the “E.M.S.,” “EMS Accessories,” and “EMS Supply” furnished on January 2, 2009, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies on the ground, among others, that the supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy and rehabilitation, which the peer reviewer stated rendered these supplies unnecessary. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the “E.M.S.,” “EMS Accessories,” and “EMS Supply” furnished on January 2, 2009 should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & [*3]13th Jud Dists 2013]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished on January 2, 2009 is granted to the extent of dismissing so much of the complaint as sought to recover for an “E.M.S.,” “EMS Accessories,” and “EMS Supply” and, on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered November 21, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is affirmed, without costs; and it is further,

ORDERED that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this [*2]decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued a claim denial that was conclusory, vague, or without merit as a matter of law, this is an
incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of its cross motion, defendant submitted affirmed peer review reports which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is affirmed, and, on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the Clerk of [*3]this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 16, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 16, 2013

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (John Dupuy of counsel), for appellant. Law Office of Ilona Finkelshteyn, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**41 Misc 3d at 20} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished on December 16, 2008 is granted; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to appellant; and it is further, ordered that on the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the Office of the Clerk of this court and serving a copy on the others on or before October 4, 2013; and it is further, ordered that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and stated that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

{**41 Misc 3d at 21}Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued a claim denial that was conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover{**41 Misc 3d at 22} upon a claim for supplies furnished on October 23, 2008, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for these supplies. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, this branch of defendant’s cross motion was properly denied.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished to plaintiff’s assignor on December 16, 2008, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies, on the ground, among others, that these supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy and rehabilitation, which treatment plan, the peer reviewer stated, was sufficient to restore the assignor to the assignor’s pre-accident comfort level. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination (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]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover on a claim for supplies furnished on December 16, 2008 should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, respondent’s appellate argument (see Rules of Practice for App Term, 2d Dept, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of Chief Admin [22 [*2]NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that “[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct” (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers. In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for supplies furnished on December 16, 2008 is granted and, upon the court’s own motion, Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, are directed to show cause why an order should or should not be made and entered imposing such sanctions{**41 Misc 3d at 23} and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq., pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the Office of the Clerk of this court and serving a copy on the others on or before October 4, 2013.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated October 24, 2011. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the fourth and sixth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing the fourth and sixth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, insofar as is relevant to this appeal, moved for summary judgment dismissing the fourth and sixth causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The District Court found, for all purposes in the action, that the denial of claim forms at issue with respect to plaintiff’s fourth and sixth causes of action had been timely mailed. However, the District Court denied the branches of defendant’s motion seeking to dismiss plaintiff’s fourth and sixth causes of action on the ground that plaintiff [*2]had raised a triable issue of fact.

In support of its motion for summary judgment, defendant submitted an affidavit by the owner of Alternative Consulting and Examinations (ACE), the entity which had scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted an affidavit of its examining chiropractor, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. As the District Court found, for all purposes in the action, that defendant had timely mailed the denials at issue, and as plaintiff does not challenge that finding, defendant established its prima facie entitlement to summary judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In opposition to the motion, plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]). Further, plaintiff submitted only an affirmation of counsel, which failed to raise a triable issue of fact. Since plaintiff’s remaining contention is raised for the first time on appeal and we decline to consider it (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), defendant is entitled to summary judgment dismissing plaintiff’s fourth and sixth causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing the fourth and sixth causes of action are granted.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur.
Decision Date: August 08, 2013