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
NO. 2014-1842 Q C

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 22, 2014. The order granted defendant’s motion for leave to reargue its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered May 23, 2014, and, upon reargument, in effect, vacated the order dated May 23, 2014, and thereupon granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered July 22, 2014 is reversed, with $30 costs, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Defendant alleged that it had reduced the payment for CPT Code 20553 in accordance with the fee schedule, attaching the page of the fee schedule setting forth the appropriate relative value. However, it did not provide the conversion factor or provide an explanation for the reduction. By order entered May 23, 2014, the Civil Court denied defendant’s motion. Defendant subsequently moved for leave to reargue its prior motion and, upon reargument, for summary judgment dismissing the complaint. By order entered July 22, 2014, the Civil Court granted reargument and, upon reargument, in effect, vacated the May 23, 2014 order and granted defendant’s motion for summary judgment dismissing the complaint.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]). Here, defendant did not allege that the Civil Court had overlooked or misapprehended any matters of fact or law in denying its motion for summary judgment. Rather, defendant’s attorney alleged, for the first [*2]time, that the fee schedule reduction had been based upon a calculation, and attached, for the first time, the page of the fee schedule setting forth the appropriate conversion factor. As this is not a proper basis for seeking leave to reargue, and defendant did not seek leave to renew its prior motion or provide an explanation for its failure to present the relevant facts on its prior motion (see CPLR 2221 [e] [3]), defendant’s motion for leave to reargue should have been denied.

Accordingly, the order entered July 22, 2014 is reversed, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

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

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
2014-1718 K C

Gary Tsirelman, P.C. (Joseph Padrucco, Esq.), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 6, 2012. The order denied plaintiff’s motion to vacate a prior order of the same court (Carolyn E. Wade, J.) entered May 2, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 6, 2012 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Carolyn E. Wade, J.), by order entered May 2, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, declining to consider plaintiff’s late opposition to the motion. Plaintiff subsequently moved, pursuant to CPLR 5015 (a) (1), to vacate the order entered May 2, 2011. Plaintiff appeals from an order of the Civil Court (Wavny Toussaint, J.), entered March 6, 2012, which denied that motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, as the excuse offered by plaintiff’s attorney was, in effect, that her late submission “was the result of her heavy workload,” which “amount[s] to nothing more than mere neglect, which is not accepted as an excusable default” (A.B. Med., PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

In view of the lack of an excusable default, it is unnecessary to consider whether plaintiff sufficiently demonstrated the existence of a potentially meritorious opposition to defendant’s motion for summary judgment (see Levi v Levi, 46 AD3d 519 [2007]).

Accordingly, the order entered March 6, 2012 is affirmed.

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

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