Richmond v Jones

[*1] Richmond v Jones 2015 NY Slip Op 50225(U) Decided on February 24, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2013-2036 N C

Jeffrey Richmond, M.D., Respondent,

against

Hanna Jones, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Douglas J. Lerose, J.), dated September 10, 2013. The order denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) or, in the alternative, for summary judgment dismissing the complaint, and for the imposition of sanctions.

ORDERED that the order is affirmed, without costs.

In 2011, Orthopaedic Associates of Manhasset, P.C. (OAM) commenced an action against defendant to recover the sum of $10,865.17 for medical treatment rendered to her by Dr. Jeffrey Richmond, an orthopedic surgeon. In that action, defendant moved for summary judgment dismissing the complaint, on the ground that Dr. Richmond, and not OAM, was the proper plaintiff. In an order dated June 11, 2012, the District Court (Fred J. Hirsh, J.), concluding that Dr. Richmond was the proper party to commence the action, granted defendant's motion "without prejudice to recommence on behalf of the proper party." Thereafter, Dr. Richmond commenced this action to recover the sum of $10,865.17 for medical services rendered to defendant. After issue was joined, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (1), based on documentary evidence, or, in the alternative, for summary judgment dismissing the complaint, and for the imposition of sanctions. The District Court (Douglas J. Lerose, J.), by order dated September 10, 2013, denied the motion in its entirety. We affirm.

"The doctrine of judicial estoppel precludes a party from taking a position in one legal proceeding which is contrary to that which he or she took in a prior proceeding, simply because his or her interests have changed" (Matter of New Cr. Bluebelt, Phase 4, 79 AD3d 888, 890 [2010]). Since defendant, in the prior action, successfully argued that Dr. Richmond, and not OAM, was the proper party to commence a lawsuit against her, she is precluded by the doctrine of judicial estoppel from advancing in this action her contention that services were rendered and invoices were sent by OAM, and from challenging Dr. Richmond's standing to commence this action or his involvement in the controversy at issue.

With respect to the branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (1), such an application may be granted "only where [the] documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue" (Yue Fung USA Enters., Inc. v Novelty Crystal Corp., 105 AD3d 840, 841 [2013] [citations omitted]). "In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable" (Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747 [2011] [citation and internal quotation marks omitted]). The purported documentary evidence submitted by defendant in support of this branch of her motion did not constitute "documentary evidence" for the purposes of the statute (see Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010]). As defendant's submissions did not "utterly refute" plaintiff's [*2]allegations and conclusively establish that defendant was not liable to plaintiff for the medical services he had performed, the branch of defendant's motion seeking dismissal of the complaint pursuant to CPLR 3211 (a) (1) was properly denied.

Similarly, the District Court properly denied the branch of defendant's motion seeking summary judgment dismissing the complaint, because defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

We note that, in this case, verification of the complaint was not statutorily required. As defendant was not entitled to be served with a verified complaint in the first instance, the complaint, which was defectively verified, may not, as defendant contends, be treated as a nullity (see 5-3022 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3022.02).

In view of the foregoing, we find that the District Court did not improvidently exercise its discretion in denying defendant's application for sanctions.

Accordingly, the order of the District Court is affirmed.

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

Decision Date: February 24, 2015