Grimble & Loguidice, LLC (Robert Grimble, Esq.), for appellant.Law Offices of Santo Golino (Louis Marinos, Esq.), for respondent.2014-2239 K C. PEPIN v. DiBRIENZA — Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), dated July 16, 2014. The order, insofar as appealed from, denied so much of a motion for summary judgment dismissing the petition as was made by tenant, Stephen DiBrienza, Esq., and granted the branches of landlord’s cross motion seeking summary judgment dismissing the first affirmative defense, insofar as it was asserted by tenant, Stephen DiBrienza, Esq., and on so much of the petition as was against tenant, Stephen DiBrienza, Esq.ORDERED that the order, insofar as appealed from, is modified by providing that the branches of landlord’s cross motion seeking summary judgment dismissing the first affirmative defense, insofar as it was asserted by tenant, Stephen DiBrienza, Esq., and on so much of the petition as was against tenant, Stephen DiBrienza, Esq., are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs. In this commercial holdover proceeding, landlord alleges that she terminated the lease because tenant, Stephen DiBrienza, Esq., had entered into subleases without landlord’s permission, and tenant and the alleged subtenants (together “respondents”) have interposed several affirmative defenses, including, insofar as is relevant to this appeal, waiver. Tenant and undertenants moved for summary judgment dismissing the petition, and landlord cross-moved for summary judgment. The Civil Court denied the motion and granted the cross motion. Tenant appeals.Although it is undisputed that tenant, an attorney, allowed other individuals and entities to operate their businesses out of the subject premises, neither party provided the details of the arrangements. Thus, it cannot be conclusively said on this record whether the arrangements between tenant and the alleged subtenants were subleases (see Theatre Row Phase II Assoc. v. National Rec. Studios, 291 AD2d 172 [2002]). Consequently, neither party is entitled to summary judgment. Furthermore, the affirmative defense of waiver should not have been dismissed, as landlord did not demonstrate, as a matter of law, either that the non-waiver clause had not been waived (see P & D Cards & Gifts v. Matejka, 150 AD2d 660 [1989]; Lee v. Wright, 108 AD2d 678 [1985]), or that the defense otherwise lacks merit. Accordingly, the order, insofar as appealed from, is modified by providing that the branches of landlord’s cross motion seeking summary judgment dismissing the first affirmative defense, insofar as it was asserted by tenant, Stephen DiBrienza, Esq., and on so much of the petition as was against tenant, Stephen DiBrienza, Esq., are denied.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Anita Nissan Yehuda, Esq., for respondent.2015-192 Q C. MASIGLA v. UNITED SERVS. AUTO. ASSN. — 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, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, to the extent of compelling plaintiff to respond to certain of defendant’s discovery demands.ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide her federal and state tax returns for 2012 is denied; as so modified, the order, insofar as appealed from, 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 Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands to the extent of compelling plaintiff to provide defendant with “plaintiff’s federal and state tax returns for 2012, plaintiff’s payroll tax filings & NYS quarterly withholdings for 2012 as well as any and all lease agreements, rental and/or ownership agreements for the facility.”Plaintiff’s motion for summary judgment was properly denied, 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 is not entitled to the discovery ordered by the Civil Court. However, as plaintiff failed to timely challenge the propriety of the discovery demands (see CPLR 3122 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v. City of New York, 17 AD3d 520 [2005]; Marino v. County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v. State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). While discovery demands which concern matters relating to defenses which a defendant is precluded from raising are palpably improper and may not be discoverable, the defense at issue in this case, that plaintiff is not entitled to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to a failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]), is not precludable (see Matter of Acuhealth Acupuncture, P.C. v. Country-Wide Ins. Co., 149 AD3d 828 [2017]).Plaintiff is a natural person, and defendant has failed to establish its entitlement to her federal and state tax returns, since “[i]t is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor v. State-Wide Ins. Co., 22 AD3d 435, 435-436 [2005] [internal quotation marks omitted]; see also Benfeld v. Fleming Props., LLC, 44 AD3d 599, 600 [2007]). However, plaintiff has not demonstrated that the remaining items at issue are privileged or palpably improper.Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide her federal and state tax returns for 2012 is denied.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Anita Nissan Yehuda, Esq., for respondent.2015-628 Q C. MASIGLA v. UNITED SERVS. AUTO. ASSN. — Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered December 17, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, to the extent of compelling plaintiff to respond to certain discovery demands.ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide her federal and state tax returns for 2012 is denied; as so modified, the order, insofar as appealed from, 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 Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands to the extent of compelling plaintiff to provide defendant with plaintiff’s federal and state tax returns for 2012, payroll tax filings and NYS quarterly withholdings for 2012, and any and all leasing, rental and/or ownership agreements for the facility. For the reasons stated in Masigla, as Assignee of Bony, Bergomi v. United Servs. Auto. Assn. (__ Misc 3d __, 2018 NY Slip Op _____ [appeal No. 2015-192 Q C], decided herewith), the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide her federal and state tax returns for 2012 is denied. ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C., for the respondent (no brief filed).2015-1988 K C. ZAYAS PHYSICAL THERAPY, P.C. v. AUTO ONE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate (1) an order of that court entered January 16, 2014 granting, upon the consent of the parties, plaintiff’s motion for summary judgment, and (2) a judgment of that court, entered February 20, 2014 pursuant to the January 16, 2014 order, awarding plaintiff the principal sum of $1,246.50, and, upon such vacatur, in effect, to deny plaintiff’s motion and for summary judgment dismissing the complaint.ORDERED that the order entered May 14, 2015 is affirmed, without costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant did not submit written opposition to the motion. By order entered January 16, 2014, the Civil Court granted the motion, stating that “[b]oth sides agreed [that plaintiff may enter judgment] and will not appeal the order.” A judgment in the principal sum of $1,246.50 was entered pursuant to that order on February 20, 2014. Thereafter, defendant moved to vacate the January 16, 2014 order and the judgment entered pursuant thereto, arguing that it had a reasonable excuse of law office failure for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, in effect, to deny plaintiff’s motion and for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant’s motion on the ground that defendant had failed to offer a reasonable excuse for its failure to submit written opposition to plaintiff’s motion for summary judgment.As the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Healthworx Med., P.C. v. Auto One Ins. Co., 55 Misc 3d 140[A], 2017 NY Slip Op 50559[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Hallock v. State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143, 150 [1971]; CCU, LLC v. Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing. Accordingly, the order entered May 14, 2015 is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Law Office of Daniel J. Tucker, for respondent (no brief filed).2016-156 K C. GREENWAY MED. SUPPLY CORP. v. AMERICAN TR. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered October 8, 2015. The order granted defendant’s cross motion for summary judgment dismissing the complaint and denied, as academic, plaintiff’s motion for summary judgment.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits arising out of an accident which occurred on April 19, 2010, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrine of res judicata, in that, by order entered April 3, 2013 on default, the Supreme Court, New York County, found that defendant is not obligated to honor or pay claims for reimbursement to the assignor and provider herein, among others, which had no rights “with respect to the April 20 [sic], 2010 alleged accident.” Plaintiff opposed defendant’s cross motion solely on the ground that the Supreme Court’s order had no collateral estoppel effect, as it had been entered on default. In reply papers, defendant proffered a subsequent order of the Supreme Court, dated April 2, 2015, which “vacated, resettled and corrected” the April 3, 2013 order to indicate that the date of the accident at issue was April 19, 2010. By order entered October 8, 2015, the Civil Court granted defendant’s cross motion based on res judicata and denied plaintiff’s motion as academic. Plaintiff argues, for the first time on appeal, that the April 3, 2013 Supreme Court order has no preclusive effect because it applies to an accident on April 20, 2010, whereas the accident at issue in this case occurred on April 19, 2010. Plaintiff further argues that the “revised” April 2, 2015 order should not be considered as it was first submitted in reply papers.The April 3, 2013 Supreme Court order did not have res judicata effect, as that order was vacated by the April 2, 2015 order. However, the April 2, 2015 order, which was attached to defendant’s reply papers, replaced the April 3, 2013 order and set forth the correct accident date of April 19, 2010, and a court “may, in general, take judicial notice of matters of public record” (Headley v. New York City Tr. Auth., 100 AD3d 700, 701 [2012]). Furthermore, contrary to plaintiff’s contention, the April 2, 2015 Supreme Court order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order taken by default which has not been vacated (see Lazides v. P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v. Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v. Facey, 272 AD2d 399 [2000]; Ava Acupuncture P.C. v. NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Accordingly, we do not disturb the Civil Court’s order granting defendant’s cross motion (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]). Accordingly, the order is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.New York City Legal Aid Society (Rachel L. Pecker, Esq.), for appellant.Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi and Tina Grillo, of counsel), for respondent.2016-366 Q CR. PEOPLE v. BURCA, RUSLAN — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (John F. Zoll, J.), rendered January 5, 2016. The judgment convicted defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law §511 [1] [a]).ORDERED that the judgment of conviction is reversed, on the law, defendant’s guilty plea is vacated and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.At his arraignment, defendant waived his right to be prosecuted by an information and pleaded guilty to aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law §511 [1] [a]). On appeal, defendant contends that the accusatory instrument was facially insufficient in that it failed to allege that he knew, or should have known, that his driver’s license had been suspended. Defendant further argues that his plea of guilty was not entered knowingly, intelligently and voluntarily.Defendant’s contention regarding the facial sufficiency of the accusatory instrument with respect to the charge of aggravated unlicensed operation of a motor vehicle in the third degree is jurisdictional and, therefore, may be raised on appeal even though defendant did not raise this contention in the Criminal Court (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Kalin, 12 NY3d 225, 229 [2009]; People v. Konieczny, 2 NY3d 569 [2004]). However, a hearsay defect in an accusatory instrument is not jurisdictional and is forfeited by a guilty plea (see People v. Keizer, 100 NY2d 114, 121 [2003]). As defendant waived his right to be prosecuted by an information, the facial sufficiency of the accusatory instrument must be measured by the standard required of misdemeanor complaints (see People v. Dumay, 23 NY3d 518, 522 [2014]). In his supporting deposition, the police officer alleged that he believed that defendant knew, or had reason to know, that his driver’s license had been suspended based upon the officer’s search of the official, computerized records of the Department of Motor Vehicles, which indicated that defendant’s license had been suspended at the time of the offense at issue as a result of defendant’s failure to answer prior summonses, and that all such summonses feature a warning that “if you do not answer this ticket by mail within fifteen (15) days, your license will be suspended. The suspension occurs automatically, by computer, within 4 weeks of the defendant’s failure to answer.” The officer further alleged that, during the traffic stop, defendant was unable to produce a valid driver’s license. The accusatory instrument, read together with the supporting deposition and the attached documents, sufficiently alleges “facts of an evidentiary character supporting or tending to support” the charge of aggravated unlicensed operation of a motor vehicle in the third degree (see CPL 100.15 [3]; Vehicle and Traffic Law §511 [1] [a]), and the factual allegations “provide reasonable cause to believe that defendant committed the offense charged” (CPL 100.40 [4] [b]), including that defendant knew, or had reason to know, of the suspension of his license (see Vehicle and Traffic Law §511 [1]; People v. Scott, 47 Misc 3d 138[A], 2015 NY Slip 50588[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Sanago, 35 Misc 3d 143[A], 2012 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; People v. Austin, 34 Misc 3d 136[A], 2011 NY Slip Op 52402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).Defendant’s contention that his guilty plea was not entered into knowingly, intelligently and voluntarily — because, aside from a single reference to a nonjury trial, he had never been apprised of any other constitutional rights that he was forfeiting by pleading guilty (see Boykin v. Alabama, 395 US 238 [1969]; People v. Tyrell, 22 NY3d 359 [2013]) — is preserved for appellate review since defendant pleaded guilty and was sentenced in the same proceeding, and, thus, he had “no opportunity to withdraw the plea before imposition of the sentence” (People v. Conceicao, 26 NY3d 375, 382 [2015]; see also People v. Louree, 8 NY3d 541, 546 [2007]; People v. Ayala, 55 Misc 3d 150[A], 2017 NY Slip Op 50755[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v. Sabino, 51 Misc 3d 142[A], 2016 NY Slip Op 50675[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). A “guilty plea is not invalid solely because the trial court failed to recite a defendant’s constitutional rights under Boykin v. Alabama. The record as a whole, however, must affirmatively demonstrate that defendant knowingly, intelligently and voluntarily waived those rights” (People v. Pellegrino, 26 NY3d 1063, 1063 [2015] [citations omitted]; see also People v. Conceicao, 26 NY3d at 382-384), and “a valid waiver can be established ‘where…the defendant consulted with [his or her] attorney about the constitutional consequences of a guilty plea’ ” (People v. Sougou, 26 NY3d 1052, 1055 [2015], quoting People v. Tyrell, 22 NY3d at 365). In the case at bar, defendant pleaded guilty on the same day he was arraigned on the accusatory instrument, and merely answered two questions posed by the Criminal Court — whether he wanted to plead guilty and whether he understood that, by pleading guilty, he forfeited the right to a nonjury trial at which the District Attorney would have to prove the charges against him beyond a reasonable doubt. Defendant replied yes to each question. The record on appeal does not indicate that defendant signed a waiver of misdemeanor rights form, discussed the waiver of his constitutional rights with his attorney, or otherwise had the benefit of his attorney’s guidance, prior to pleading guilty, in regard to the constitutional rights he was forfeiting. Defendant also did not inform the court that his plea was voluntary and that he understood the consequences of the plea (cf. People v. Ayala, 55 Misc 3d 150[A], 2017 NY Slip 50755[U], *1; People v. Sokolov, 51 Misc 3d 140[A], 2016 NY Slip Op 50618[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In view of the foregoing, we find that the record as a whole did not affirmatively demonstrate that defendant’s plea was knowingly, intelligently and voluntarily entered into and, therefore, the plea must be vacated (see Boykin v. Alabama, 395 US at 244; see also People v. Conceicao, 26 NY3d at 384; People v. Tyrell, 22 NY3d at 366; People v. Crawford, 55 Misc 3d 150[A], 2017 NY Slip Op 50731[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v. Andino, 50 Misc 3d 133[A], 2016 NY Slip Op 50030[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Furthermore, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed since defendant has completed his sentence, only relatively minor offenses were charged in the instrument, and no penological purpose would be served by reinstating the proceedings (see People v. Vicuna, 53 Misc 3d 153[A], 2016 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v. Barnes, 46 Misc 3d 137[A], 2015 NY Slip Op 50034[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; cf. People v. Allen, 39 NY2d 916, 917-918 [1976]).Accordingly, the judgment of conviction is reversed, defendant’s guilty plea is vacated and the accusatory instrument is dismissed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Weston, J.P., Aliotta, Elliot, JJ.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.2016-463 Q C. ONE TO ONE REHAB PT, P.C. v ALLSTATE INS. CO. – Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered January 19, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered January 19, 2016, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion. In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee who described the details of her search of defendant’s records and stated that her search had revealed that there was no coverage by defendant for the vehicle in question on the date of the accident. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claims did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).Accordingly, the order is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 12, 2018By: Weston, J.P., Aliotta, Elliot, JJ.Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant.Law Offices of Ilona Finkelshteyn (Ilona Finkelshteyn, Esq.), for respondent.2016-910 K C. PRECIOUS ACUPUNCTURE CARE, P.C. v. HEREFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered November 13, 2015, deemed from a judgment of that court entered February 16, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 13, 2015 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,322.51.ORDERED that the judgment is reversed, with $30 costs, the order entered November 13, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of five claims for services plaintiff rendered between December 2013 and April 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff sought to recover amounts which were in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered November 13, 2015, the Civil Court held that defendant was precluded from interposing such a defense because defendant had failed to timely deny plaintiff’s claims. As a result, the court granted plaintiff’s motion and denied defendant’s cross motion. As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances…for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” As the services at issue were provided between December 2013 and April 2014, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]). Accordingly, the judgment is reversed, the order entered November 13, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted. WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 12, 2018By: Weston, J.P., Aliotta, Elliot, JJ.The Law Offices of John W. Manning, P.C. (Maureen A. Sockett, Esq.), for appellant.Vannessa Hall, respondent pro se (no brief filed).2016-1631 K C. HALL v. LINDEN BLVD. MULTIPLEX CINEMAS — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered September 29, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $235.ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment dismissing the action.Plaintiff commenced this small claims action to recover for injuries sustained as a result of bedbug bites which she had allegedly incurred while she was watching a movie in defendant’s theater. Following a nonjury trial, the Civil Court, in a judgment entered September 29, 2015, awarded plaintiff the principal sum of $235. Defendant appeals from the judgment.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]). While a theater owner has a duty to maintain the premises in a reasonably safe condition, it cannot be an insurer of the safety of its patrons, and its duty is only to exercise reasonable care for their protection (see Gilson v. Metropolitan Opera, 5 NY3d 574 [2005]). “An owner of a theater or stadium is not liable for injuries caused by a defective condition on the premises unless the owner created the condition or there is actual or constructive notice of the defect that caused the injury. Constructive notice results when the condition has existed for a sufficient length of time that in the exercise of reasonable care the owner should have known of the existence of the defect” (4-161 Warren’s Negligence in New York Courts §161.01 [4]). As plaintiff did not show either that defendant had created the condition or had actual or constructive notice of the condition, the judgment in her favor failed to render substantial justice (see CCA 1804, 1807). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the action.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.MD Alamin Chowdhury, appellant pro se.John Demaio, Esq., for respondents (no brief filed).2016-1660 Q C. CHOWDHURY v. RAS TAXI, INC. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 23, 2016. The judgment, after a nonjury trial, dismissed the complaint.ORDERED that the judgment is affirmed, without costs.In this action, plaintiff seeks to recover damages in the principal sum of $25,000 for “loss of use of property,” “damages caused to automobile” and “failure to return property.”At a nonjury trial, plaintiff testified that he owned a vehicle for which he had leased a taxi medallion and that defendants had not returned the vehicle to him. Following the trial, the Civil Court dismissed the complaint.Upon a review of the record, we find that there was conflicting testimony regarding the ownership of the vehicle. In any event, plaintiff failed to establish his damages.We note that, contrary to plaintiff’s contention, the transcript of the trial has been properly settled (see CPLR 5525).Accordingly, the judgment is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Law Offices of Scott D. Gross (Matthew N. Kaufman, Esq.), for appellant.The Legal Aid Society (Diana Li, Esq.), for respondent.2016-2090 K C. 1800 ALBERMARLE, INC. v. PYLE — Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), dated June 3, 2016. The order denied landlord’s motion for the entry of a final judgment of possession in a holdover summary proceeding.ORDERED that the order is affirmed, without costs.In this holdover proceeding based on a claim that the long-term, rent-stabilized tenant had violated a substantial obligation of the tenancy by being chronically delinquent in the payment of rent, the parties executed a stipulation of settlement pursuant to which tenant was required to pay the rental arrears as well as make timely future payments. The stipulation provided that, upon three or more defaults, the landlord could move for the entry of a final judgment. Landlord appeals from an order denying its motion, pursuant to the stipulation, for the entry of a final judgment of possession.The record demonstrates that tenant diligently sought and received funds from a public agency to pay the arrears; that, notwithstanding several minor defaults by tenant under the stipulation, there was substantial compliance with the terms of the stipulation regarding the timely payment of rent; that tenant secured a roommate and a second job to help defray living expenses; that tenant had lived in the apartment for 15 years; and that tenant’s elderly and disabled parent lives in the household. Under all the circumstances presented, we find that the Civil Court did not improvidently exercise its discretion in denying landlord’s motion for the entry of a final judgment of possession (see Harvey v. Bodenheim, 96 AD3d 664 [2012]; 2246 Holding Corp. v. Nolasco, 52 AD3d 377 [2008]; see also 944 Kent, LLC v. Padilla, 48 Misc 3d 132[A], 2015 NY Slip Op 51058[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).Accordingly, the order is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Law Offices of Scott D. Gross (Matthew N. Kaufman, Esq.), for appellant.Brooklyn Legal Services (Udoka Odoemene, Esq.), for respondent.2016-2373 K C. CENTRAL AVE. PARTNERS, LLC v. LI QUIN HUAN CHEN — Appeal from an order of the Civil Court of the City of New York, Kings County (Leslie A. Stroth, J.), dated July 8, 2016. The order denied landlord’s motion to restore the proceeding to the calendar for a hearing to determine whether tenant had breached a probationary stipulation in a holdover summary proceeding.ORDERED that the order is affirmed, without costs.In this holdover proceeding to recover possession of a rent-stabilized apartment, the notice of termination alleges that tenant unreasonably refused access to correct violations in the premises and that those conditions caused a fire hazard. The parties entered into two stipulations of settlement, providing, among other things, that the proceeding may be restored to the calendar for a hearing in the event of an alleged default under the terms of the stipulations. Landlord moved for restoration, alleging that tenant had violated the terms of the agreements. The Civil Court denied the motion, finding that landlord’s affidavits and photographs did not demonstrate that tenant had defaulted.Upon a review of the record, we find that there is ample support for the Civil Court’s determination that landlord failed to demonstrate that tenant had defaulted under the terms of the stipulations. Consequently, the Civil Court did not improvidently exercise its discretion in denying landlord’s motion.Accordingly, the order is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Richard Ponce, appellant pro se.Oz Auto Body, Inc., respondent pro se (no brief filed).2016-2392 Q C. PONCE v. OZ AUTO BODY, INC. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered March 29, 2016. The judgment, after a nonjury trial, dismissed the action.ORDERED that the judgment is affirmed, without costs.In this small claims action, plaintiff seeks to recover the principal sum of $3,000, based on defendant’s allegedly defective repairs to his vehicle. At a nonjury trial, plaintiff testified that, after originally estimating that the repairs would cost $8,000, defendant’s employee had orally informed him that the repairs would cost $7,000, and that plaintiff had authorized the repairs based on that representation. However, following the repairs, defendant demanded, and conditioned the return of the vehicle upon, plaintiff’s payment of $8,000. Plaintiff paid defendant $8,000, and defendant returned his car to him on July 16, 2014. Plaintiff claimed that, whereas defendant had promised to install BMW factory parts, he had later learned that defendant had instead installed parts, which, plaintiff testified, were worth $1,720 less than BMW factory parts. Additionally, plaintiff asserted that, as a result of defendant’s faulty work on his vehicle, on November 7, 2015, he had paid $471 for further repairs. Following the trial, the Civil Court dismissed the action.In a small claims action, our review is limited to a determination of whether “substantial justice…has been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).Plaintiff’s claim that defendant had agreed to charge him $7,000 for its work, rather than $8,000, was based entirely on plaintiff’s testimony, and, by its dismissal of the action, the Civil Court implicitly credited neither that testimony nor plaintiff’s claim that defendant had promised to provide him with BMW factory parts but had instead installed parts of lesser value. Upon a review of the record, we find no basis to disturb the court’s credibility determination. Moreover, the Civil Court did not err in dismissing plaintiff’s claim for faulty work, since plaintiff sought to recover for repairs that had been performed on his vehicle over a year after defendant had completed its work, and failed to establish that defendant’s workmanship had been defective when rendered or that defendant had breached any express or implied warranty. Consequently, we find that the Civil Court’s determination dismissing the action rendered substantial justice between the partes (see CCA 1804, 1807).Accordingly, the judgment is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 12, 2018By: Weston, J.P., Aliotta, Elliot, JJ.2016-1865 Q CR. PEOPLE v. SANSON, ISAAC — On the court’s own motion, it isORDERED that the decision and order of this court dated December 29, 2017, which determined an appeal from an order of the Criminal Court of the City of New York, Queens County, entered June 24, 2016, is hereby recalled and vacated.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 12, 2018By: Pesce, J.P., Aliotta, Elliot, JJ.2017-11 Q C. BANK NATIONAL ASSOC. v. WRIGHT — Motion by appellant to enlarge the time to perfect an appeal from a decision of the Civil Court of the City of New York, Queens County, dated October 6, 2016.Upon the papers filed in support of the motion and no papers filed in opposition thereto, it isORDERED that the motion is denied as moot. The parties entered into a stipulation enlarging the time to perfect the appeal to January 12, 2018 and such stipulation was “so-ordered” by the court.January 12, 2018
