Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Fazio, Rynsky & Associates, LLP (Svetlana Sobel, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 11, 2016. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

After defendant failed to answer or appear in this action to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment. By order dated March 13, 2015, the District Court (C. Stephen Hackeling, J.) granted plaintiff’s motion on default. On March 26, 2015, plaintiff served a judgment with notice of settlement on defendant, and a judgment in the principal sum of $2,898.20 was entered on May 22, 2015. On July 13, 2015, defendant moved to vacate the default judgment. Plaintiff opposed the motion. By order dated February 11, 2016, the District Court (C. Stephen Hackeling, J.) denied defendant’s motion.

A defendant seeking to vacate a default in appearing or answering 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]). Here, defendant proffered an affidavit by its [*2]claims examiner, who merely stated that he was supposed to forward the summons and complaint to defense counsel, but did not, and “it was a mistake.” The claims examiner explained defendant’s default in opposing plaintiff’s motion for leave to enter a default judgment by stating that plaintiff’s motion had not been scanned into defendant’s file system until the date the motion was returnable, and that it was forwarded to defense counsel the following day. Under the circumstances presented, we find that defendant failed to establish a reasonable excuse for its default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]). Consequently, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense to the action (see Diederich v Wetzel, 112 AD3d 883 [2013]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

Marano, P.J., and Iannacci, J., concur.

Garguilo, J., taking no part.

Gabriel & Shapiro, LLC (Jason Moroff, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated June 18, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that all of plaintiff’s claims had been timely denied on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule. Moreover, the claims for dates of service July 12, 2013 through September 30, 2013 were denied on the additional ground that the services were not medically necessary, based upon an independent medical examination of plaintiff’s assignor by Dr. LoCascio, defendant’s licensed acupuncturist, which had been performed on June 24, 2013.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

With respect to the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims for dates of service July 12, 2013 through September 30, 2013 on the ground that the services were not medically necessary, while defendant, in support of its motion, submitted Dr. LoCascio’s sworn report, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for further treatment, plaintiff, in opposition to the motion, submitted an affirmation by Dr. Vatelman, the licensed acupuncturist who had treated the assignor, which meaningfully referred to and sufficiently rebutted the conclusions set forth in Dr. LoCascio’s report. We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001). We further note that while Dr. Vatelman, as an acupuncturist, was ineligible to submit an affirmation under CPLR 2106 (a), defendant waived any objection on this basis, as it did not raise this issue either in the District Court or on appeal (see Scudera v Mahbubur, 299 AD2d 535 [2002]).

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

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Law Offices of James F. Sullivan, P.C. (Giovanna Tuttolomondo, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 12, 2015. The order denied defendant’s motion to vacate a default judgment of the same court entered May 27, 2014 upon defendant’s failure to appear or answer the complaint.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits as a result of an accident which had occurred on June 20, 2010. Defendant did not answer the complaint. Thereafter, defendant commenced a declaratory judgment action in the Supreme Court, New York County, which culminated in an order declaring that Allstate Insurance Company was not obligated to provide coverage for claims by plaintiff, among other providers, relating to an accident which had occurred on June 21, 2010. Shortly after defendant served the Supreme Court order on plaintiff and its assignor, among others, plaintiff applied to the Civil Court for leave to enter a default judgment, which the court granted. The default judgment was entered on May 27, 2014.

Defendant moved by order to show cause in the Civil Court to vacate the default judgment, claiming, as an excuse for the default, that it had no record of receiving the summons and complaint, but if defendant had been served, then defendant’s failure to answer the complaint was the result of clerical error and office failure. Defendant asserted, as a potentially meritorious defense, that defendant possessed a founded belief that the collision, which defendant’s claim representative alleged in her affidavit occurred on June 21, 2010, was a staged incident. Plaintiff opposed the motion. Subsequently, defendant presented the Civil Court with the Supreme Court order in the declaratory judgment action. By order entered May 12, 2015, the Civil Court took judicial notice of the Supreme Court order but denied defendant’s motion, finding, among other things, that the Supreme Court order had not been properly served.

In support of its motion to vacate the default judgment, defendant was required to [*2]demonstrate both a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). While plaintiff’s complaint in the Civil Court asserted that the accident at issue had occurred on June 20, 2010, defendant’s proffered evidence of a staged accident referred to a June 21, 2010 collision. Consequently, defendant failed to demonstrate that the alleged injuries did not arise out of the June 20, 2010 insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Similarly, the Supreme Court declared that defendant is not obligated to reimburse plaintiff for claims “relating to the June 21, 2010 accident.” Thus, we cannot find that the order in the declaratory judgment action, which relieves defendant of liability for claims relating to a June 21, 2010 accident, is a conclusive determination barring plaintiff’s recovery in the Civil Court for injuries sustained by its assignor in a June 20, 2010 accident. In the absence of an explanation of the discrepancy in the dates of the accident, defendant failed to demonstrate the existence of a potentially meritorious defense to the action. In view of the foregoing, it is unnecessary to consider whether defendant proffered a reasonable excuse for its default.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

[*1]

Law Offices of Melissa Betancourt, P.C., Brooklyn, NY (Frank D’Esposito of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Stuart Flamen of counsel), for respondent.

Appeal from an order of the Supreme Court, Kings County (Jules L. Spodek, J.), dated June 2, 2015. The order, insofar as appealed from, directed that the administrator of the defendant Estate of Ronald L.L. Collins appear for a deposition.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal from so much of the order as directed that the administrator of the defendant Estate of Ronald L.L. Collins appear for a deposition, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, with costs.

The plaintiff insurance company commenced this action against, among others, the defendant Estate of Ronald L.L. Collins, seeking a judgment declaring, inter alia, that the plaintiff has no obligation to pay no-fault claims for medical services purportedly rendered by Collins. In an order dated June 2, 2015, the Supreme Court, inter alia, directed that the administrator of Collins’s estate (hereinafter the administrator) appear for a deposition. The defendants appeal from that portion of the order.

CPLR 3101 (a) (1) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The terms “material and necessary” in this statute “must ‘be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’ ” (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see D’Alessandro v Nassau Health Care Corp., 137 AD3d 1195, 1196 [2016]). “At the same time, a party is ‘not entitled to unlimited, uncontrolled, unfettered disclosure’ ” (D’Alessandro v Nassau Health Care Corp., 137 AD3d at 1196, quoting Geffner v Mercy Med. Ctr., 83 AD3d 998, 998 [2011]). “ ’It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims’ ” (D’Alessandro v Nassau Health Care Corp., 137 AD3d at 1196, quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, [*2]421 [1989]). Here, the plaintiff made no showing that conducting the deposition of the administrator will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (see Black v Budget Rent A Car Corp., 224 AD2d 350 [1996]; Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d at 421).

The parties’ remaining contentions are without merit.

Accordingly, the Supreme Court improperly directed that the administrator appear for a deposition. Rivera, J.P., Hall, LaSalle and Connolly, JJ., concur.

Decided on May 12, 2017

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

Decided on May 12, 2017

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rubin, Fiorella & Friedman, LLP (Conrad Horowitz, 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, insofar as appealed from as limited by the brief, sua sponte, awarded defense counsel “$250 in fees.”

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor, who allegedly had sustained injuries in a motor vehicle accident which had occurred on June 26, 2010. Defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrines of res judicata and collateral estoppel by virtue of an order it had obtained against this provider, among others, in a Supreme Court declaratory judgment action involving the same motor vehicle accident. Plaintiff opposed defendant’s motion and cross-moved for various types of relief. The Civil Court, in an order entered October 23, 2015, granted defendant’s motion for summary judgment dismissing the complaint, denied plaintiff’s cross motion and, sua sponte, awarded defense counsel “$250 in fees.” Plaintiff appeals, as limited by its brief, from so much of the order as awarded defense counsel “$250 in fees.”

We assume that the Civil Court, in making its award, was relying upon Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (a), which permits a court, on its own initiative, to award “to any party or attorney . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct.”^[FN1] While a court may make such award on its own initiative (after affording the parties a reasonable opportunity to be heard and setting forth its findings in a written decision), we note that no appeal as of right lies from the portion of an order which is decided sua sponte (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]), and we decline to grant leave to appeal. We further note that plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that such motion was denied (Sholes v Meagher, 100 NY2d at 335; see CCA 1702 [a] [3]).

Accordingly, the appeal is dismissed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: May 12, 2017

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.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. McCormack & Mattei, P.C. (Florina Amlakh, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 12, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action on January 25, 2012 to recover assigned first-party no-fault benefits for medical supplies provided to its assignor, who had allegedly sustained injuries in a motor vehicle accident on May 28, 2011. Defendant served its answer on February 12, 2012. On July 27, 2012, defendant commenced a declaratory judgment action in the Supreme Court, Nassau County, against plaintiff herein, seeking a declaration that defendant was under no obligation to pay any of plaintiff’s claims arising from the accident at issue, since plaintiff had failed to comply with a condition precedent to reimbursement of first-party no-fault benefits by failing to appear for duly scheduled examinations under oath. Plaintiff did not appear or serve an answer in the Supreme Court declaratory judgment action. By judgment entered January 28, 2013, the Supreme Court granted defendant a declaratory judgment on default, and, on April 1, 2013, the default judgment was served with notice of entry on plaintiff. On January 9, 2014, defendant moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by virtue of the declaratory judgment. In opposition, plaintiff argued that there is no preclusive effect from the declaratory judgment because there is no identity of issues between the present action and the declaratory judgment action. By order [*2]entered May 12, 2015, the Civil Court granted defendant’s motion.

In light of the Supreme Court’s declaratory judgment, the Civil Court properly granted defendant’s motion under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). We note that those issues that plaintiff raises for the first time on appeal are unpreserved for appellate review and have not been considered by this court (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Ilona Finkelshteyn, P.C., for respondent, (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate a prior order of the same court entered January 27, 2014 granting, upon defendant’s default in submitting written opposition, plaintiff’s motion for summary judgment, and the judgment entered pursuant thereto on February 14, 2014 and, upon such vacatur, for summary judgment dismissing the complaint.

ORDERED that 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, after one adjournment, the Civil Court, by order entered January 27, 2014, granted the motion without opposition from defendant. A judgment was entered pursuant to that order on February 14, 2014. Subsequently, defendant moved to vacate the judgment and order, contending, insofar as is relevant to the arguments raised by defendant on appeal, that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, for summary judgment dismissing the complaint. By order dated May 14, 2015, the Civil Court denied defendant’s motion, finding that defendant had not provided a reasonable excuse for its default.

The Civil Court did not improvidently exercise its discretion in denying defendant’s motion. A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. [*2]Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, none of defendant’s attorney’s allegations explain why defendant failed to timely submit written opposition to plaintiff’s motion for summary judgment. Consequently, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion for summary judgment (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

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

The Law Office of Gregory A. Goodman, P.C., for appellant. Law Offices of Daniel J. Tucker (Raquel Williams, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated April 19, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

With respect to plaintiff’s claim for $1,310.94, the affidavits defendant submitted in support of its motion do not establish, prima facie, that the assignor failed to appear at two scheduled independent medical examinations (IMEs), since we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 136[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). As defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up IME, defendant did not establish that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). However, plaintiff is not entitled to summary judgment with respect to this claim since the record does not establish, as a matter of law, that defendant’s denial of claim form, which denied the claim on the ground that plaintiff’s assignor had failed to appear for two [*2]duly scheduled IMEs, was untimely or that such a defense lacks merit.

With respect to plaintiff’s claim for $1,019.62, although the affidavit of defendant’s no-fault examiner was sufficient to show that defendant had never received that claim, the affidavit of plaintiff’s employee, in which the affiant stated that he had personally generated and mailed plaintiff’s $1,019.62 claim to defendant, was sufficient to give rise to the presumption that the claim had been received by defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, a triable issue of fact exists as to the submission of the $1,019.62 claim (see Lenox Hill Radiology v Great N. Ins. Co., 50 Misc 3d 142[A], 2016 NY Slip Op 50206[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[U], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, neither defendant nor plaintiff was entitled to summary judgment on this claim.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

Marano, P.J., Garguilo and Brands, JJ., concur.