Telyas v Telyas

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Telyas v Telyas 2012 NY Slip Op 33253(U) December 21, 2012 Sup Ct, Nassau County Docket Number: 3934/12 Judge: Robert A. Bruno Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. ROBERT A. BRUNO, J.S.C. -------------------------------------------------------------------------x AVITELYAS, Plaintiff, TRIAL/IAS PART 20 INDEX No.: 3934112 Motion Date: 10/23/12 Motion Sequence: 001, 002 -againstJAYNE TEL YAS, SIRGA Y SANGER, M.D., and SIRGA Y SANGER, M.D., PL.L.LC, DECISION & ORDER Defendants. -------------------------------------------------------------------------x Papers Numbered Sequence #001 Order to Show Cause ......................................................................................... 1 Affirmation in Opposition .................................................................................. 2 Reply Affirmation .............................................................................................. 3 Sequence #002 Notice of Motion ............................................................................................... 4 Affirmation in Opposition .... .... ....... .. .. ... ........ .... .. .... ... .. .. .. ... ..... .... ....... ..... ........ 5 Reply Affirmation ... ..... ... ....... .. .... ...... ........... .. .... .. ....... ... ..... ................ ...... ...... . 6 This motion (sequence #001) by the defendant Jayne Telyas for an order pursuant to CPLR 321 l(a)(7) and/or CPLR 3212 seeking dismissal of the complaint against her and an order pursuant to 22 NYCRR 130-1.1 imposing sanctions on the plaintiff is determined as provided herein. This motion (sequence #002) by the defendants Sirgay Sanger, M.D. and Sirgay Sanger, M.D., P.L.L.C. for an order pursuant to CPLR 321 l(a)(4) dismissing the complaint on the grounds that there is another action pending is determined as provided herein. The Telyases were married on April 12, 1988. At various states of their lives, the Telayas' four children have been patients of Dr. Sanger as has the defendant Jayne Telyas, both in her capacity as the children's mother as well as individually. Plaintiff, Avi Telyas, filed for divorce on September 22, 2009. By order dated August 9, 2010, Hon. Anthony J. Falanga granted Jayne Telyas' pendente lite application compelling Avi Telyas, inter alia, to pay 100% of the costs of the children's therapy with Dr. Sanger which is not covered by insurance, which is capped at $4,800.00 per month. Telyas v Telyas, SFO August 9, 2010, Index No. 202617/09 (Supreme Court Nassau County). The Order also directed defendant, Jayne Telyas, to pay her Page I [* 2] Telyas v. Telyasa et al Index No.: 3934/12 own uncovered health related expenses. Thereafter, defendant, Jayne Telyas, applied to the Court to hold plaintiff in contempt of its August 9, 20,0 order and plaintiff cross-moved for, inter alia, a downward modification of his obligation td pay the costs of the children's therapy with Dr. Sanger. Hon. Anthony J. Falanga found t~at there was no evidence to justify a modification of plaintiff's obligation to Dr. Sanger for tlhe children's therapy. Telyas v Telyas. SFO February 7, 2011, Index No. 202617/09 (Supreme k::ourt Nassau County). In a so-ordered stipulation dated October 12, 2011, the parties, inter! alia, ratified plaintiffs other support obligations under the August 9, 2010 pendente lite order. i On March 28, 2012, the plaintiff, Avi Telyas, co\nmenced this action against defendants Jayne Telyas and Dr. Sanger. Plaintiff alleges that the defendants have conspired to submit bills for defendant Jayne Telyas's psychotherapy sessions in the names of the parties' children. Plaintiff advances claims sounding in conspiracy to coijn.mit fraud, unjust enrichment, libel or slander based on defendant Telyas' alleged threat of anpther contempt application, declaratory relief and fraudulent billing practices in violation of feder~l and state laws. Rather than dismissing an action under CPLR §321 l(a)(4), the conrt may, when appropriate, consolidate it with another pending action. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211 :fa, at p. 33; see. Mideal Homes Corp. v L&C Concrete Work, Inc., 90 AD2d 789 (2"d Dept 1982)i Consolidation is to be directed where "it will avoid unnecessary duplication of trials, sav¢ unnecessary costs and prevent the possibility of incongruous decisions based on the same f!J.cls." Toulouse v Chandler, 5 Misc 3d 1005(A), fn. 9 (Supreme Court Westchester County 2004), citing Chinatown Apts. Inc. v New York City Tr. Auth., 100 AD2d 824 (3'd Dept 1984). "If it is otherwise proper, a consolidation will not be denied because the parties involved are not identical." MCC Funding !,LC v Diamond Point Enterprises, LLC, 36 Misc 3d !206(A)'(Supreme Conrt Kings County 2012), citing Philip Shlansky & Bro., Inc. v Grossman, 273 App. iDiv. 544, 546 (l ''Dept 1948). The record clearly demonstrates that plaintiff has i been ordered to pay Dr. Sanger's bills for services rendered to the parties' children in the pending matrimonial action. Therefore, the issue of whether Dr. Sanger's bills are legitimate should ibe determined by the Justice presiding over the matrimonial action in order to avoid inconsisten~ decisions with that of the matrimonial action. Accordingly, this action shall be joined with thd matrimonial action Telyas v. Telya.1·, Index No.: 202617/09. Accordingly, the two actions are joined for trial an!d each action shall retain its own index number and the caption shall read as follows: Page 2 [* 3] Telyas v. Telyasa et al Index No.: 3934/12 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---~-------~--------------~---------------------------------------------)( AVITELYAS, Plaintiff, -against- Index# 202617/09 JAYNE TELY AS, Defendant. ---------------------------------------------------------------------------)( AVI TELYAS, Plaintiff, Index No. 3934112 - against JAYNE TELYAS, SIRGAY SANGER, M.D., and SIRGAY SANGER, M.D., PL.L.LC, Defendants. -----------------------------~--------------------------------------------)( These actions are joined for trial and all parties shall serve upon any party so demanding copies of disclosure documents heretofore obtained in the other action, and it is further ORDERED, that the joined actions shall bear the combined caption as set forth above and all matters of trial practice, including the right to open and close, are reserved to the Justice presiding at the joint trial; and it is further ORDERED, that all papers shall reflect the joint caption of these actions, and upon completion of discovery, the parties shall file separate Notes of Issue and Certificates of Readiness, as to each action; and it is further ORDERED, that each party shall be entitled to enter separate Judgments and Bills of Costs and Disbursements in each action respectively, if costs are allowed. The Movant shall serve a copy of this Order upon all parties to both Actions and upon the Clerk of the Supreme Court of Nassau C01mty within fifteen (15) days. Upon receipt of this Page 3 [* 4] Telyas v. Telyasa et al Index No.: 3934/12 Order, the Nassau County Clerk is directed to join the files for trial and amend the caption as directed above. As a result of the joining of these actions for trial, Action #2 shall be transferred for all purposes to the IAS Matrimonial Judge as the earlier action was assigned to Hon. Stacey Bennett. It is further ordered that the parties are directed to contact the !AS Matrimonial Judge within ten (10) days of receipt of this Order. ORDERED, that counsel shall serve a copy of this order upon counsel pursuant lo CPLR §2103 (b) 1, 2, 3 or 6, within seven (7) days of the date of this order; and it is further All matters not decided herein are DENIED. This constitutes the Decision and Order of this Court. Dated: December 21, 2012 Mineola, New York ENTER: _:~_o_n_ ,l'.'lob~e. .: rt;:. A&_.~-:Jt:,r;uf.4l_ns"-'i.oZc,; .1" " =~- - ENTl!FIEC> !'lP'I': 2~2012 NASSAU COUNTY COUNTY Cl.EAK'S OFFICE F:\2012 SCPREME COURTDECISJONSITELYAS v TELYAS er ~I- motion! I & 1- I0-2J-12.wpd Page 4

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