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
2015-2887 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 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 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 $250 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 $250 in “fees.”

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

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.

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
2015-2806 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 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 that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). 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 contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . [*2]. . that the provider failed to appear and that the [insurer] issued a timely denial of the claims” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s granting of 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.”

WESTON, J.P., PESCE and SOLOMON, 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 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
2015-2504 K C

Kopelevich & Feldsherova, P.C. (David Landfair, Esq.), for appellant. Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 15, 2015. The order granted defendant’s motion to vacate a default judgment of the same court entered on December 5, 2014 upon defendant’s purported failure to appear or answer the complaint.

ORDERED that the order is affirmed, with $25 costs.

Plaintiff commenced this action on June 27, 2014 to recover assigned first-party no-fault benefits. Defendant was served with the complaint on July 10, 2014, and plaintiff filed proof of service of the complaint on August 14, 2014. Plaintiff subsequently applied to the clerk for a default judgment, pursuant to CPLR 3215 (a), and a default judgment was entered on December 5, 2014.

On January 14, 2015, defendant moved to vacate the default judgment. In a supporting affirmation, defense counsel asserted that his firm had served an answer on plaintiff’s attorney on August 5, 2014 and that it had filed the answer with the court on August 15, 2014. Defense counsel annexed a copy of the answer with a date stamp from the court, indicating that the answer had been timely filed with the clerk of the court on August 15, 2014. In addition, counsel referred to the annexed affidavit of service of the answer as well as an affidavit of the firm’s mail clerk, both indicating that, on August 5, 2014, the mail clerk had mailed the answer in accordance with the firm’s mailing practices and procedures. Plaintiff’s counsel, in opposition to the motion, stated that the answer had not been received by his office. By order entered October 15, 2015, the Civil Court granted defendant’s motion.

A defendant seeking to vacate a default in answering or appearing based on excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant [*2]factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]).

We need not decide whether defendant’s showing of its law firm’s mailing practices and procedures was sufficient to demonstrate, prima facie, that it had timely served its answer upon plaintiff, since even if it wasn’t a sufficient showing, defendant’s belief that it had mailed the answer in accordance with its law firm’s standard mailing procedures was sufficient to constitute a reasonable excuse for its default, if any. Moreover, defendant demonstrated the existence of a potentially meritorious defense to the action. In light of the foregoing, and considering the public policy favoring resolution of cases on the merits, defendant’s lack of willfulness, and the absence of a showing of prejudice, the Civil Court did not improvidently exercise its discretion in granting defendant’s motion to vacate the default judgment.

Accordingly, the order is affirmed.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-160 Q C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Mandell & Santora, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 8, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branches of defendant’s motion seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial are granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branches of a motion by defendant seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial.

For the reasons stated in S.J. Pahng, M.D., P.C., as Assignee of Jin Hee Ma v AutoOne Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2842 Q C], decided herewith), the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial should have been granted; therefore, the branch of defendant’s motion seeking to strike the notice of trial should also have been granted.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial are granted.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-147 Q C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Richard W. Shin, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered December 18, 2014. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of a motion by defendant seeking to compel plaintiff to appear for an examination before trial.

For the reasons stated in S.J. Pahng, M.D., P.C., as Assignee of Jin Hee Ma v AutoOne Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2842 Q C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2842 Q C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Richard W. Shin, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 6, 2014. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of a motion by defendant seeking to compel plaintiff to appear for an examination before trial (EBT).

As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2702 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 15, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing 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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

For the reasons stated in TAM Med. Supply Corp., as Assignee of Garcia, Nancy v 21st Century Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2698 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALOTTA, MARTIN M. SOLOMON, JJ
2014-2700 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq,), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 15, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing 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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

For the reasons stated in TAM Med. Supply Corp., as Assignee of Garcia, Nancy v 21st Century Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2698 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2698 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 16, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing 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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contentions, the affirmations by the attorneys who were scheduled to conduct the EUOs, and certified transcripts reflecting plaintiff’s failure to appear for the EUOs, established that plaintiff’s assignor had failed to appear at either of the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Laga v 21st Century Ins. Co., 53 Misc 3d 148[A], 2016 NY Slip Op 51623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff’s remaining contentions lack merit.

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

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