Decided on October 27, 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
2014-1574 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 13, 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 second, third, fourth, eighth and ninth 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 affirmed, with $25 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 dismissing the complaint on various grounds. Insofar as is relevant to this appeal, by order entered June 13, 2014, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment on the second, third, fourth, eighth and ninth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Contrary to plaintiff’s sole argument with respect to those claims, the affirmation submitted by defendant was sufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s contention as to the branch of its motion seeking summary judgment on the first cause of action is not properly before this court, as that branch of its motion remains pending and undecided (see Andreas v Catskill Mtn. Lodging, LLC, 60 AD3d 604 [2009]).

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

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

Decided on October 20, 2017

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

Law Offices of Ilona Finkelshteyn, P.C. (Ilona Finkelshteyn, Esq.), for appellant. McDonnell, Adels & Klestzick, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 9, 2015. The order, insofar as appealed from as limited by the brief, sua sponte, awarded defense counsel costs in the sum of $1,000 and imposed upon plaintiff’s counsel sanctions in the sum of $2,500.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, awarded defense counsel costs in the sum of $1,000 and imposed upon plaintiff’s counsel sanctions in the sum of $2,500 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, insofar as appealed from, is reversed, without costs, and so much of the order as, sua sponte, awarded defense counsel costs in the sum of $1,000 and imposed upon plaintiff’s counsel sanctions in the sum of $2,500 is vacated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to strike the action from the trial calendar and vacate the notice of trial, or, in the alternative, to dismiss the complaint. The Civil Court, in an order entered September 9, 2015, granted the branches of defendant’s motion seeking to strike the action from the trial calendar and vacate the notice of trial, and denied the branch of the motion seeking to dismiss the complaint. The court also, sua sponte, awarded defense counsel costs in the sum of $1,000 and imposed [*2]upon plaintiff’s counsel sanctions in the sum of $2,500. Plaintiff appeals from so much of the order as awarded costs to defense counsel and imposed sanctions upon plaintiff’s counsel.

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]). As the Civil Court failed to provide such an opportunity, the order, insofar as appealed from, is reversed, and so much of the order as awarded costs in the sum of $1,000 to defense counsel and imposed sanctions in the sum of $2,500 upon plaintiff’s counsel, pursuant to 22 NYCRR 130-1.1, is vacated (see Hester v Hester, 121 AD3d 645).

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

Zara Javakov, P.C. (Zara Javakov, Esq.), for appellant. McDonnell & Adels, P.C. (Erik Kallhovd, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered October 22, 2013. The order, insofar as appealed from as limited by the brief, upon reargument, in effect, vacated so much of the determination in an order of the same court dated August 17, 2012 as denied the branch of defendant’s prior motion seeking to compel plaintiff Jamhil Medical, P.C. to appear for an examination before trial, and thereupon directed plaintiff Jamhil Medical, P.C. to “re-submit complete responses and objections, if any, to defendant’s interrogatories” within 45 days of receipt of the order with notice of entry, which defendant was directed to serve along with a copy of its interrogatories and a notice of an examination before trial.

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 served Jamhil Medical, P.C. (plaintiff) with, among other things, a notice of an examination before trial (EBT), a demand for interrogatories and a notice to produce. By order dated August 9, 2011, the Civil Court (Dawn Jimenez Salta, J.) ordered plaintiff to “provide verified written responses within 60 days.” By order dated August 17, 2012, insofar as is relevant to this appeal, the Civil Court (Ingrid Joseph, J.) granted the branch of defendant’s subsequent motion seeking to dismiss pursuant to CPLR 3126 or to compel disclosure, including an EBT, “to the extent that Plaintiff is ordered, pursuant to CPLR 3124, to re-submit written answers and objections, if any, [*2]to Defendant’s interrogatories, signed or verified under oath by an officer, director, member, agent or employee of plaintiff . . . having the information,” and denied the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT.

Defendant then moved for leave to reargue, asserting, insofar as is relevant to this appeal, that it was entitled to an EBT as well as responses to its discovery demands. Upon granting leave to reargue, the Civil Court (Ingrid Joseph, J.), by order entered October 22, 2013, in effect vacated so much of the August 17, 2012 order as denied the branch of defendant’s prior motion seeking to compel plaintiff to appear for an EBT, and thereupon directed plaintiff to “re-submit complete responses and objections, if any, to defendant’s interrogatories” within 45 days of receipt of the order with notice of entry, which defendant was directed to serve along with a copy of its interrogatories and a notice of an EBT.

Plaintiff’s appellate argument is concerned with the subject matter of defendant’s notice to produce, which is not mentioned in the order appealed from, and is irrelevant to defendant’s interrogatories, to which the order directs plaintiff to respond. Plaintiff does not make any specific argument on appeal regarding the EBT or the interrogatories.

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

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

Decided on September 22, 2017

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

Decided on September 22, 2017

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

Decided on September 22, 2017

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

Decided on September 22, 2017

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

Decided on September 22, 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 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 (Carmen R. Velasquez, J.), entered July 18, 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 so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811 and to compel disclosure.

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 an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811, and to compel disclosure.

Contrary to plaintiff’s argument on appeal, it failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Moreover, plaintiff’s arguments on appeal as to defendant’s proof of mailing of the denial of claim forms lack merit.

Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff failed to establish that the discovery demands served by defendant seek information which is palpably improper or privileged.

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

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