Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co. (2017 NY Slip Op 51519(U))

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2015-2812 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, 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 October 28, 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 $500 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 $500 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 $500 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 that plaintiff had failed to appear for duly scheduled examinations under oath. Plaintiff appeals from an order of the Civil Court which denied its motion, granted defendant’s cross motion, and, sua sponte, awarded defense counsel $500 in “fees.”

For the reasons stated in Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D., as Assignee of Obunike, Norbert Ebere v Geico Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op ____ [appeal No. 2015—2806 Q C], decided herewith), the order is modified by vacating so much thereof as, sua sponte, awarded defense counsel $500 in “fees.”

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