The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Law Offices of Aloy O. Ibuzor (Medgine Bernadotte, Esq.), for respondent.2014-2475 Q C. TAM MED. SUPPLY CORP. v. TRAVELERS INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 29, 2014. The order, insofar as appealed from, upon denying defendant’s motion for summary dismissing the complaint, declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant's] verification requests.”ORDERED that the order, insofar as appealed from, is modified by striking the provision therein that, “At trial [plaintiff] has the burden to prove…whether it fully complied with [defendant's] verification requests”; as so modified, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff opposed the motion and annexed its verification responses to its opposition papers. Plaintiff appeals from so much of the order of the Civil Court entered September 29, 2014 as declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant's] verification requests.” Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v. Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v. Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant's] verification requests.”We decline plaintiff’s request to make a CPLR 3212 (g) finding in plaintiff’s favor (see S & R Med., P.C. v. GEICO Gen. Ins. Co., 52 Misc 3d 133[A], 2016 NY Slip Op 51013[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).Accordingly, the order, insofar as appealed from, is modified by striking the provision therein that, at trial, plaintiff has the burden to prove “whether it fully complied with [defendant's] verification requests.”PESCE, P.J., WESTON and ELLIOT, JJ., concur.March 9, 2018The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Law Offices of Rubin & Nazarian (Melissa Brooks, Esq.), for respondent.2016-998 Q C. ACUPUNCTURE NOW, P.C. v. HEREFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered January 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.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 the insurance policy covering the vehicle allegedly involved in a June 10, 2011 motor vehicle accident had been cancelled prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.The Civil Court held that defendant had demonstrated, as a matter of law, that the vehicle involved in the accident was a “for hire” vehicle and that, prior to the accident, the policy insuring the vehicle had been properly and validly cancelled in compliance with Vehicle and Traffic Law §370 and 15 NYCRR §34.11 (e). While the cancellation of the policy is governed by Vehicle and Traffic Law §370, which requires the insurer to file a certificate of cancellation with the Commissioner of Motor Vehicles, the record reflects that defendant also sent its own cancellation notice in addition to complying with the statute. Plaintiff’s sole contention on appeal is that the sending of this additional notice “rendered the purported cancellation ineffective” (Travelers Prop. Cas. Corp. v. Eagle Ins. Co., 273 AD2d 65, 66 [2000]). However, contrary to plaintiff’s argument, the May 10, 2011 notice at issue, which defendant sent informing the policyholder that it intended to cancel the policy effective June 6, 2011, did not render the cancellation of the policy ineffective (see American Tr. Ins. Co. v. Hinds, 14 AD3d 378 [2005]).Accordingly, the order is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.March 9, 2018Mitchell Dranow, Esq., for appellant.Richard T. Lau & Associates (Marcella G. Crewe, Esq.), for respondent.2016-1734 Q C. ANDERSON v. BECKFORD — Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 25, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, without costs.In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.Plaintiff raises no issue with the Civil Court’s determination that defendant met his prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the accident at issue (see Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992]). Upon a review of the record before us, we find that plaintiff’s submissions were insufficient to raise a triable issue of fact with respect to the permanent consequential limitation of use (see Abreu v. Metropolitan Transp. Auth., 117 AD3d 972 [2014]) and significant limitation of use (see Sukalic v. Ozone, 136 AD3d 1018 [2016]) categories of serious injury. Moreover, neither plaintiff nor his neurologist proffered evidence demonstrating that plaintiff sustained “a medically determined injury or impairment of a non-permanent nature which had prevent[ed] [plaintiff] from performing substantially all of the material acts which constitute [plaintiff's] usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment” (Insurance Law §5102 [d]).Accordingly, the order is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.March 9, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2016-1835 K CR. THE PEOPLE v. DIEM, DAVID — Motion by Paul Skip Laisure, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered June 17, 2016, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated January 25, 2018, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and the papers filed in opposition thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.March 7, 2018By: Solomon, J.P., Pesce, Elliot, JJ.2016-2030 Q C. WINZONE REALTY, INC. v. DE JIN XUE — Motion by appellant for leave to reargue an appeal from a judgment of the Civil Court of the City of New York, Queens County, entered March 9, 2016, which was determined by decision and order of this court dated December 1, 2017, or, in the alternative, for leave to appeal to the Appellate Division from the decision and order of this court.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.SOLOMON, J.P., taking no part.March 9, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-366 K CR. THE PEOPLE v. KOSOGLIAD, EVGENI — Motion by Martin Goldberg, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 19, 2017, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated January 23, 2018, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and the papers filed in opposition thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.March 7, 20182017-2348 Q CR. THE PEOPLE v. ROBERTSON, NIGEL — Motion by defendant for leave to prosecute an appeal from orders of the Criminal Court of the City of New York, Queens County, entered May 31, 2017 and November 3, 2017, respectively, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the application and no papers having been filed in opposition thereto, it isORDERED that the motion is denied as academic, as defendant’s application for leave to appeal has been denied.March 7, 2018By: Pesce, P.J., Aliotta, Siegal, JJ.2018-141 Q CR. THE PEOPLE v. BALTAZAR, PEDRO — Motion by defendant, pursuant to CPL 460.30, for an extension of time to take an appeal from judgments of conviction of the Criminal Court of the City of New York, Queens County, rendered November 30, 2017, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking an extension of time to take an appeal is granted and defendant’s moving papers are deemed to constitute a timely notice of appeal; and it is further,ORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and the Legal Aid Society is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with defendant’s sentencing, including the recommendation sheet and any prior reports on defendant which are incorporated or referred to in the report.March 7, 2018By: Pesce, P.J.2018-221 K CR. THE PEOPLE v. FOX, DANIEL — Application by defendant, pursuant to CPL 450.15 and 460.15, for a certificate granting leave to appeal to this court from an order of the Criminal Court of the City of New York, Kings County, entered December 12, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and no papers having been filed in opposition thereto, it isORDERED that the application is denied.March 7, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2018-293 K CR. THE PEOPLE v. SERRANO, JOANNE — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 25, 2018, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.March 7, 20182018-294 K CR. THE PEOPLE v. CHENG, MICHAEL — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 25, 2018, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.March 7, 20182018-295 K CR. THE PEOPLE v. JONES, LARRY — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 22, 2018, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.March 7, 20182018-296 K CR. THE PEOPLE v. PEARSON, TROY — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 22, 2018, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.March 7, 20182018-297 K CR. THE PEOPLE v. ESTRELLA, BRADLEY — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 22, 2018, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.March 7, 20182018-400 Q C. PARKASH v. ARROYO — Appeal from an order of the Civil Court of the City of New York, Queens County, entered December 6, 2016.On the court’s own motion, it isORDERED that the appeal is dismissed, as the order entered December 6, 2016 was vacated by a subsequent order of the Civil Court dated September 19, 2017.March 7, 20182018-403 RI C. NEW YORK CITY HOUS. AUTH. v. HINES — Appeal from a final judgment of the Civil Court of the City of New York, Richmond County, entered July 11, 2017.On the court’s own motion, it isORDERED that the appeal is dismissed, as no appeal lies from a judgment entered pursuant to a stipulation of settlement (see CPLR 5511).March 7, 2018Ninth and TenthJudical DisTRICTSBy: Marano, P.J., Tolbert, Garguilo, JJ.2016-2705 S CR. THE PEOPLE v. SARANT, JOEL — Motion by appellant, pursuant to CPL 460.50 and Vehicle and Traffic Law §1808, on an appeal from a judgment of conviction of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, rendered September 12, 2016, to continue a stay of the execution of the judgment of conviction, including the suspension of appellant’s motor vehicle license, which stay was granted by decision and order on motion of this court dated May 12, 2017 and extended by decision and order on motion of this court dated September 19, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking to continue the stay of the suspension of appellant’s motor vehicle license is granted, provided that the stay shall terminate and be of no further effect 90 days from the date of this decision and order on motion unless this court shall have extended this order; and it is further, ORDERED that appellant shall serve a certified copy of this decision and order on motion by mail upon the Commissioner of Motor Vehicles pursuant to Vehicle and Law §1808 (a) within 10 days of the date of this decision and order on motion; and it is further,ORDERED that the remainder of the motion is denied as unnecessary.March 7, 20182017-399 S CR. THE PEOPLE v. PODMALOVSKY, KAMIL — Motion by appellant to strike the respondent’s brief on an appeal from a judgment of conviction of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, rendered November 30, 2016, or, in the alternative, to enlarge the time to serve and file a reply brief.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the branch of the motion seeking to strike the respondent’s brief is denied; and it is further,ORDERED that the branch of the motion seeking an enlargement of time to serve and file a reply brief is granted and the reply brief shall be served and filed within 10 days of the date of this decision and order on motion.This court will not consider material that is outside the record on appeal (see Chimarios v. Duhl, 152 AD2d 508 [1989]).March 7, 20182017-1112 D CR. THE PEOPLE v. HUDSON, ROBERT — Motion by appellant on an appeal from a judgment of conviction of the Justice Court of the Town of Amenia, Dutchess County, rendered May 15, 2017, to continue the stay of execution of the judgment, which was granted by the Supreme Court, Dutchess County, on May 26, 2017, and extended by decision and order on motion of this court dated November 22, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and the stay of execution of the judgment is extended pending the determination of the appeal on condition that the appeal be perfected by May 4, 2018; and it is further,ORDERED that in the event that the above condition is not met, the court, on its own motion, may vacate the stay, without further notice, or respondent may move to vacate the stay on three days’ notice; and it is further,ORDERED, on the court’s own motion, that appellant’s time to perfect the appeal is enlarged and the appeal shall be perfected by May 4, 2018.March 7, 2018By: Marano, P.J., Garguilo, Ruderman, JJ.2017-1272 S CR. THE PEOPLE v. HERNANDEZ, JOSE A. — Motion by respondent to dismiss an appeal from a judgment of conviction of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, rendered November 10, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.March 7, 2018By: Marano, P.J., Tolbert, Garguilo, JJ.2017-2431 N CR. THE PEOPLE v. KIM, JULIA — Motion by appellant, pursuant to CPL 460.50, for a stay of execution of a judgment of conviction of the Justice Court of the Village of Muttontown, Nassau County, rendered March 27, 2017. The notice of appeal was filed on December 13, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED, on the court’s own motion, that the parties show cause before this court why the above-entitled appeal should or should not be dismissed as untimely and appellant had not sought leave to file a late notice of appeal (see CPL 460.10, 460.30), by filing an affidavit or affirmation on that issue with the Clerk of this court on or before March 23, 2018; and it is further,ORDERED that appellant’s motion is held in abeyance in the interim; and it is further,ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order to show cause on the parties’ attorneys by regular mail.March 7, 2018
