New York City Hous. Auth. v Franza

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New York City Hous. Auth. v Franza 2012 NY Slip Op 32938(U) November 30, 2012 Supreme Court, New York County Docket Number: 115887/2009 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON I211212012 . ~ .. . .. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: $ LUCY B%L&INC: .. PART 44 p m J.U.W. Justice INDEX NO. * Index Number : 11588712009 NYC HOUSING AUTHORIW vs. FRANZA, DAVID SEQUENCE NUMBER : 002 MOTION DATE MOTION SEQ, NO. MOTION CAL. NO. SUMMARY JUDGMENT PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... I Answering Affidavits - Exhibits 2 . Replying Affidavits 0 Yes Cross-Motion: 3 . No @ FINAL DISPOSITION 0N Check if appropriate: 0 DONOTPOST Check one: c I I [* 2] NEW YORK CITY HOUSING AUTHORITY, Index No. 1 1 5 8 8 7 / 2 0 0 9 Plaintiff - against I DECISION AND ORDER FILED DAVID F W Z A , Defendant _______________-_____-___--____ LUCY BILLINGS, J. S . C ,- -E wvm Plaintiff moves for summary judgment on plaintiff s claim f o r recovery of $17,600.00 in Workers Compensation payments to defendant, plaintiff s former employee, for lost earnings from July 2006 to May 2 0 0 7 . C.P.L.R. 8 3212(b). Finding defendant misrepresented his inability to work and his nonperformance of work activities during that period, in violation of N e w York Workers Compensation Law § 114-a, the State Workers Compensation Board disqualified him from those benefits. Upon oral argument of plaintiff s motion, based on the prior administrative adjudication, and f o r the reasons explained below, the court grants the motion. I. THE FINDINGS OF THE WORKERS COMPENSATION BOARD THEIR PRECLUSIVE EFFECT AND A claims supervisor of plaintiff s nonparty administrator for its Workers Compensation claims attests to the facts regarding defendant s claim f o r and plaintiff s payment of Workers Compensation to defendant. The o n l y facts defendant presents relating to t h e merits of plaintiff s claim are through hafranza.144 1 [* 3] his continued insistence that he was not working or engaging in physical activity when videotaped on several occasions beginning July 12, 2006. N o r did he work, undertake work activity, or commit fraud through May 16, 2 0 0 7 , when his Workers' Compensation Board hearing commenced. The Workers' Cornpensatson Board Panel Decision October 10, 2008, determined these very issues to the contrary, after a hearing where defendant appeared, was represented by an attorney, and testified; defendant's treating physician as well as plaintiff's examining physician testified; and the videotape was admitted in evidence. N.Y. Workers' Comp. Law § 25(3)(b); Poli v. Taconic Correctional Facility, 83 A.D.3d 1339, 1340 (3d Dep't 2011); Husak v. New York City Tr. Auth., 4 0 A.D.3d 1249, 1 2 5 0 - 5 1 (3d Dep't 2 0 0 7 ) ; Jacob v. New York City Tr. Auth., 632 A.D.3d 631, (3d Dep't 2 0 0 6 ) ; Amster v. New York City Sheriff's O f f . , 17 A.D.3d 789, 790-91 (3d Dep't 2005) * § 26 As Workers' Compensation Law 23 dictates, this decision precludes different findings here: "An award or decision of the board shall be final. and conclusive upon all questions . . . between the parties, unless reversed or . modified on appeal therefrom . . Law § 25(3) .I1 See N.Y. Workers' Comp. (a); Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349-50 (1999); Allied Chem. v. Niaqara Mohawk Power Corp., 72 N.Y.2d 2 7 1 , 2 7 4 , 276 (1988); Liss v. Trans Auto S v s . , 68 N.Y.2d 15, 2 2 (1986); ED0 Seidman LLP v. Stratesic Resources Corp., 70 A.D.3d 556, 560-61 (1st Dep't 2010). Defendant never appealed the Workers' Compensation Board hafranza.144 2 [* 4] administrative proceeding unfairly denied him an opportunity to rebut the investigator's testimony and surveillance video demonstrating his work or work activity and thus his fraud See Parker v. Blauvelt Volunteer between July 2 0 0 6 and May 2 0 0 7 . Fire Co., 93 N.Y.2d at 349-50; Allied Chem. v. Niaqara Mohawk Power C o r p . , 7 2 N,Y.2d at 277; BDO Seidman LLP v . Stratesic Resources Corp., 70 A.D.3d at 560. Even if this contention were undisputed, the means f o r him to advance such defense was an appeal from the Workers' Compensation Board Panel to the Appellate Division, T h i r d Department. N.Y. Workers' Camp. Law § 23. Nevertheless, the administrative proceeding did provide defendant the opportunity to cross-examine plaintiff's witnesses. He declined to cross-examine plaintiff's investigator, however, and did not request to testify again in rebuttal until after the parties' summations, and never proffered what rebuttal he would present. F o r these reasons, the administrative law judge fairly evidentiary or legal grounds. 11. ATTORNEYS' FEES AND EXPENSES While plaintiff was free to move f o r attorneys' fees and expenses if defendant's defense proved entirely frivolous, 2 2 N.Y.C.R.R. Greenberq hafranza.144 § & 130-1.1; Cadlerock Joint Venture, L.P. v. S o l Sons Intl., Inc., 94 A . D . 3 d 3 580, 581-82 (1st Dep't ... . - [* 5] 2012); Visual Arts Found., Inc. v. Eqnasko, 91 A.D.3d 578, 579 (1st Dep't 2012); Newman v. Berkowitz, 50 A.D.3d 479, 480 (1st Dep't 2008); Intercontinental Bank Ltd v. Mircale & Rivera, 300 A.D.2d 2 0 7 , 208 (1st Dep't 2002)' plaintiff did not seek attorneys' fees and expenses on this basis anywhere in this motion. Plaintiff sought fees and expenses simply for i t s collection efforts, but has provided no statutory, regulatory, or contractual authority for such an award, Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 2 8 , 39 (2012); Baker v. Health M q t . SYS., 98 N.Y.2d 80, 88 (2002); Hooper Assocs. v. AGS Computers, 74 N.Y.2d 4 8 7 , 4 9 1 ( 1 9 8 9 ) ; Campbell v. Citibank, 302 A.D.2d 150, 154 ( 1 s t Dep't 2003), and failed further to seek fees and expenses in its complaint. Its first request for fees and expenses based on a frivolous defense is in reply to defendant's opposition to the motion. Because this belated request deprived defendant of an opportunity to oppose the request, v. Capetola, 96 A . D . 3 d 612, 613 (1st Dep't 2 0 1 2 ) , see Capetola the court denies plaintiff this additional relief. 22 N.Y.C.R.R. § 130l.l(d); Matter of Lawrence, 79 A,D,3d 417 (1st Dep't 2 0 1 0 ) ; NYCTL 1997-1 Trust v. Seijas, 307 A.D.2d 876, 877 (1st Dep't 2003); Rudansky v. Giorqio Armani, S.D.A., 306 A.D.2d 174 (1st Dep't 2003) ; Day v. NYP Holdinqs, 290 A.D.2d 342, 343 (1st Dep't 2002). - Mehmet See v. Add2Net. I n c . , 66 A.D.3d 4 3 7 , 438 (1st Dep't 2009); Serradilla v. Lords Corp., 50 A.D.3d 3 4 5 , 346 ( 1 s t Dep't 2008). hafranza.144 4 [* 6] 111. CONCLUSION For the reasons set forth above, however, the c o u r t grants plaintiff's motion f o r summary judgment in full and awards plaintiff a judgment o $17,600.00 against defendant. f 3212(b). C.P.L.R. § The Workers' Compensation Board Decision that orders defendant to pay that amount was filed and mailed to defendant October 19, 2009. The court therefore awards plaintiff interest from October 24, 2009, the date of defendant's presumed receipt. C.P.L.R. § § 2103(b) ( 2 ) and (c), 5 0 0 1 ( b ) . Plaintiff a l s o is entitled to costs and disbursements pursuant to C.P.L.R. § § 8101, 8201(1), and 8301(a), to be calculated by the Clerk. The Clerk shall enter the judgment specified, plus t h e costs and disbursements, forthwith. DATED : November 30, 2012 rp - % w LUCY BILLINGS, J.S.C. 7'.' hafranza.144 . c 5

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