Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant.Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.2014-2036 K C. K.O. MED., P.C. v. MERCURY CAS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014, deemed from a judgment of the same court entered August 22, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the July 7, 2014 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,983.39.ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 7, 2014 as granted plaintiff’s cross motion for summary judgment is vacated, plaintiff’s cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein.Plaintiff commenced this action on April 12, 2013 to recover assigned first-party no-fault benefits. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 7, 2014, the Civil Court denied defendant’s motion, finding that defendant had failed to establish the assignor’s nonappearances at the EUOs, and granted plaintiff’s cross motion. A judgment was subsequently entered on August 22, 2014, awarding plaintiff the principal sum of $1,983.39. Defendant’s appeal from the July 7, 2014 order is deemed to be from the judgment (see CPLR 5512 [a]).On appeal to this court, defendant has annexed to its reply brief a December 4, 2014 short-form order of the Supreme Court, Bronx County, in a declaratory judgment action that was commenced in October 2014 and asks this court to take judicial notice of that order, in which the Supreme Court granted on default a judgment declaring that plaintiff herein and its assignor, among others, are not entitled to no-fault coverage for the same accident as is at issue in the case at bar.For the reasons stated in K.O. Med., P.C., as Assignee of Brutus Christopher v. Mercury Cas. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2021 K C], decided herewith), we reverse the Civil Court’s judgment, vacate so much of the Civil Court’s order entered July 7, 2014 as granted plaintiff’s cross motion for summary judgment and deny the cross motion, and, upon taking judicial notice of the Supreme Court’s superseding order entered October 17, 2016 pursuant to the December 4, 2014 short-form order, granting defendant’s motion for the entry of a default judgment and declaring that plaintiff herein and its assignor are not entitled to no-fault benefits arising out of the accident at issue, award summary judgment dismissing the complaint to defendant pursuant to CPLR 3212 (b). In view of this determination, we do not review so much of the Civil Court’s order as denied defendant’s motion for summary judgment dismissing the complaint.November 17, 2017By: Weston, J.P., Pesce, Solomon, JJ.Shawn Watson, appellant pro se.Daniels, Norelli, Scully & Cecere, P.C. (Robert Cecere, Esq.), for respondent.2016-1003 K C. FILLMORE GARDENS COOP., INC. v. PUBLIC ADM’R, RICHMOND COUNTY — Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated January 25, 2016. The order denied a motion by occupant Shawn Watson to, in effect, vacate a so-ordered stipulation of settlement, and the final judgment and warrant entered pursuant thereto, in a nonpayment summary proceeding.ORDERED that the order is affirmed, without costs.In this nonpayment proceeding, the representative of the estate of the tenant of record, Susan Margolis, failed to appear or answer the petition. A guardian ad litem (GAL) was appointed to represent undertenant Joan Bernstein, and, in January 2015, landlord, Bernstein, through her GAL, and occupant Shawn Watson (who was substituted for the “John Doe” undertenant) entered into a so-ordered stipulation of settlement in which Bernstein and Watson admitted that landlord was owed $74,452.62 and agreed to pay landlord that sum by a date certain, in default of which landlord could accelerate the execution of the warrant. The stipulation awarded landlord a final judgment of possession and a warrant, which warrant was stayed. Thereafter, no payments were made pursuant to the terms of the stipulation. In January 2016, Watson moved to, in effect, vacate the stipulation, final judgment and warrant, claiming, among other things, that he did not understand that the stipulation applied to him. The Civil Court denied Watson’s motion.It is well settled that stipulations of settlement are judicially favored and will not easily be set aside (see Hallock v. State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143 [1971]). While stipulations of settlement may be vacated on grounds sufficient to set aside a contract, such as fraud, mistake, collusion or accident (see Nash v. Yablon-Nash, 61 AD3d 832 [2009]), a party should not be relieved from the consequences of a stipulation absent a sufficient showing of one of these grounds (see Cavalry Portfolio Servs., LLC v. Williams, 38 Misc 3d 138[A], 2013 NY Slip Op 50184[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, although Watson was allowed to appear in the proceeding (see RPAPL 743), he is not a named tenant on the proprietary lease and he failed to show any defense to the nonpayment proceeding or to establish sufficient grounds to vacate the stipulation (see Cavalry Portfolio Servs., LLC v. Williams, 38 Misc 3d 138[A], 2013 NY Slip Op 50184 [U]). Thus, the Civil Court properly denied his motion. We note that this court will not consider statements or documents which are dehors the record on appeal (see Chimarios v. Duhl, 152 AD2d 508 [1989]).Accordingly, the order is affirmed.WESTON, J.P., PESCE and SOLOMON, JJ., concur.November 17, 2017By: Pesce, P.J., Aliotta, Solomon, JJ.2017-65 K C. HARVEY v. PROTO PROP. SERVS. — Motion by appellant on an appeal from a judgment of the Civil Court of the City of New York, Kings County, entered November 17, 2016, to continue a stay granted by decision and order on motion of this court dated March 13, 2017, and extended by decision and order on motion of this court dated July 26, 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 on condition that appellant perfect the appeal by January 5, 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, or respondent may move to vacate the stay on three days’ notice.November 17, 20172017-1746 K CR. THE PEOPLE v. THOMPSON, MALCOLM — 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 August 9, 2017, 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 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 appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 17, 20172017-1749 K CR. THE PEOPLE v. BRADLEY, JAMEL — 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 August 14, 2017, 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 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 appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 17, 20172017-1811 Q CR. THE PEOPLE v. RAMIREZ, VICTOR — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered August 18, 2017, 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 granted and Appellate Advocates 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 appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 17, 20172017-1923 K C. JOSEPH v. HOLLADAY — Motion by appellant for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, entered October 10, 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 denied.November 17, 2017By: Elliot, J.P., Pesce, Solomon, JJ.Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.2014-2021 K C. K.O. MED., P.C. v. MERCURY CAS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 11, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.ORDERED that so much of the appeal as is from the portion of the order that denied defendant’s motion for summary judgment dismissing the complaint is dismissed as academic in light of this court’s determination of the remainder of the appeal; and it is further,ORDERED that the order, insofar as reviewed, is reversed, with $30 costs, plaintiff’s cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein. 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant appeals from an order of the Civil Court, entered July 11, 2014, which denied defendant’s motion, finding that defendant had failed to establish the assignor’s nonappearances at the EUOs, and granted plaintiff’s cross motion. On the appeal, defendant has annexed to its reply brief a December 4, 2014 short-form order of the Supreme Court, Bronx County, in a declaratory judgment action and asks this court to take judicial notice of that order, in which the Supreme Court granted on default a judgment declaring that plaintiff herein and its assignor, among others, are not entitled to no-fault coverage for the accident that is at issue in the case at bar.Contrary to the determination of the Civil Court, plaintiff failed to establish its prima facie entitlement to summary judgment, as plaintiff’s cross-moving papers failed to establish either that defendant had not denied the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law §5106 [a]; 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]). Thus, the portion of the order which granted plaintiff’s cross motion for summary judgment must be reversed and plaintiff’s cross motion denied. Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, as a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v. Cromer, 146 AD2d 666, 667 [1989]; see Headley v. New York City Tr. Auth., 100 AD3d 700 [2012]), this court, having afforded plaintiff an opportunity to address the propriety of the Supreme Court’s short-form order, and as the challenges that plaintiff has raised thereto lack merit, declines to remit the matter and, in the interest of judicial economy, takes judicial notice of the Supreme Court’s superseding order, entered October 17, 2016, pursuant to the short-form order, granting defendant’s motion for the entry of a default judgment and declaring that plaintiff herein and its assignor are not entitled to no-fault benefits arising out of the accident at issue (see Headley, 100 AD3d at 701; Brandes Meat Corp., 146 AD2d at 667). As the Supreme Court’s order bars any subsequent proceeding between the parties in the Civil Court under the doctrine of res judicata (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]; EBM Med. Health Care, P.C. v. Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), it sufficiently appears that a party other than plaintiff is entitled to summary judgment (see CPLR 3212 [b]). Accordingly, upon reversing the portion of the Civil Court’s order which granted plaintiff’s cross motion for summary judgment, we grant defendant summary judgment dismissing the complaint pursuant to the doctrine of res judicata (see EBM Med. Health Care, P.C., 38 Misc 3d at 3), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; Flushing Traditional Acupuncture, P.C., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U]), and we dismiss as academic so much of the appeal as is from the portion of the Civil Court’s order that denied defendant’s motion for summary judgment.November 17, 2017Ninth and TenthJudical DisTRICTSBy: Brands, J.P., Tolbert, Garguilo, JJ.2016-683 N C. PAUL J. GUIDA, INC. v. EASON — Motion by appellants for leave to reargue an appeal from a judgment of the District Court of Nassau County, Third District, entered June 24, 2016, which was determined by decision and order of this court dated July 27, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.November 17, 2017By: Marano, P.J., Tolbert, Garguilo, JJ.2016-2311 N CR. THE PEOPLE v. ROMANO, ROBERT — Motion by N. Scott Banks, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the District Court of Nassau County, First District, rendered September 13, 2016, to be relieved of representing appellant on the appeal, to have other counsel substituted, and for an enlargement of time to perfect the appeal.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 relieve assigned counsel of representing appellant on the appeal is granted and Andrew E. MacAskill, Esq. is assigned pursuant to article 18-B of the County Law; and it is further,ORDERED that N. Scott Banks, Esq., shall provide new counsel with all papers; and it is further,ORDERED that the branch of the motion seeking and enlargement of time to perfect the appeal is granted and the appeal shall be perfected expeditiously; and it is further,ORDERED that upon service of a copy of this decision and order upon it, the Department of Probation is hereby authorized and directed to provide newly assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 17, 20172017-200 N CR. THE PEOPLE v. NUNEZ, JESUS A. — Motion by N. Scott Banks, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the District Court of Nassau County, First District, rendered October 27, 2016, 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.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that appellant is 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 has abandoned the appeal, by filing an affirmation or an affidavit on that issue in the office of the Clerk of this court on or before December 15, 2017; and it is further,ORDERED that the motion by assigned counsel 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 upon appellant at his last known place of residence, and upon the attorney who last appeared for him, and upon the District Attorney, by ordinary mail pursuant to CPL 470.60 (2).November 17, 20172017-1237 OR CR. THE PEOPLE v. MURRAY, NIGEL L. — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the City Court of Middletown, Orange County, rendered June 1, 2017, 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 granted and SCOTT M. BISHOP, ESQ. is assigned pursuant to article 18-B of the County Law; 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.November 17, 20172017-1722 S CR. THE PEOPLE v. IRIZARRY, ANTOINETTE — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the District Court of Suffolk County, First District, rendered August 1, 2017, 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 motion is 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 appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 17, 2017
