Encompass Home & Auto Ins. Co. v Makendy

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Encompass Home & Auto Ins. Co. v Makendy 2017 NY Slip Op 32040(U) September 29, 2017 Supreme Court, New York County Docket Number: 160580/2015 Judge: Erika M. Edwards 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. [*FILED: NEW YORK COUNTY CLERK 09/29/2017 02:11 PM 1] NYSCEF DOC. NO. 407 INDEX NO. 160580/2015 RECEIVED NYSCEF: 09/29/2017 ; SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 47 ENCOMPASS HOME & AUTO INSURANCE COMPANY, Plaintiff, Index No: 160580/2015 DECISION AND ORDER -against- Motion Sequence: 005 ELIZINDA MAKENPY, MAXIME MAKENDY, MARCLISH DAVIDSON, ALICE ALARCON, JEFFERSON JUSTE, BEMBA KEITA, JEAN ADOLPHE, JOSEPH BLANC, VANES SA BLANC, SHANA DABADY, JEAN BAPTISTE EDRISZCARD, JOSEPH CARLINE, STEPHANIE LAURENT, MARIE LOUIS, ACCELERATED SURGICAL CENTER, ATLANTIC CHIROPRACTIC P.C., AXIAL CHIROPRA.CTIC P.C., BARNET SURGICAL CENTER, COASTAL ANESTHESIA SERVICES, CPM MED SUPPLY INC., EFFECTIVE HEALTHCARE MEDICAL P.C., HUMAN TOUCH REHAB PT PLLC, ISURPL Y LLC, LLJ THERAPEUTIC SERVICES PT P.C:, MAXIM TYORKIN, MD, MEDICSURG, MIDDLE VILLAGE DIAGNOSTIC IMAGING P.C., NATASHA KELLY MD, NEW BEGINNING CHIROPRACTIC P.C., PRECISION MEDICAL PRODUCTS INC., PROMPT MEDICAL SUPPLY INC., SPECIALTY SURGERY OF SEACAUCUS, STAR OF N.Y. CHIROPRACTIC DIAGNOSTIC P.C., STATE CHIROPRACTIC P.C., TONG LI, MD, P.C., VISION REHAB PT P.C., VLADIMIR SHUR, XU GAO ACUPUNCTURE P.C., XVV, INC, YEVGENIY MARGULIS, PHD, AMERICAN ALTERNATIVE INSURANCE CORP., Defendants, -againstADDITION ACUPUNCTURE P.C., ADVANCED RECOVERY EQUIPMENT AND SUPPLIES, LLC, AHMED MEDICAL CARE P.C., ANGELIC PHYSICAL.THERAPY P.C., AOM MEDICAL SUPPLY, A.R.A MEDICAL CARE, P.C., APOLLO . IMAGING MANAGEMENT LLC, ATLANTIC 2 of 5 [*FILED: NEW YORK COUNTY CLERK 09/29/2017 02:11 PM 2] NYSCEF DOC. NO. 407 RECEIVED NYSCEF: 09/29/2017 CHIROPRACTIC, PC, AXIAL CHIROPRACTIC P.C., BROOKLYN CARDIOVASCULAR CARE, P.L.L.C., CLEAR WATER PSYCHOLOGICAL SERVICES P.C., DUNAMIS REHAB PT P.C., EAST SIDE PRIMARY MEDICAL CARE, P.C., EFFECTIVE HEALTH CARE MEDICAL P .C., EXCEL SURGERY CENTER, L.L.C., HAN XU ACUPUNCTURE, P.C., HORIZON PT CARE P.C., HUMAN TOUCH REHAB, PT, PLLC, KENSINGTON RADIOLOGY GROUP, P.C., LENEX SERVICES INC., LLJ, THERAPEUTIC SERVICES, P.T. P.C., NEW BEGINNING CHIROPRACTIC P~C., NOEL BLACKMAN PHYSICIAN PC, ORTHOPRO SERVICES, INC., PARK AVENUE ORTHOPAEDICS, PC, PRECISION IMAGING OF NEW YORK, P.C., PROFESSIONAL CHIROPRACTIC CARE P.C., PROMPT MEDICAL SUPPLY, INC., REGENCY HEALTHCARE MEDICAL, PLLC, SOVERA MEDICAL SUPPLY, CORP, SP ORTHOTIC SURGICAL & MEDICAL SUPPLY, INC., THERAPEUTIC CHIROPRACTIC SERVICES P.C., STATE CHIROPRACTIC, PC,TISBURY PSYCHOLOGICAL SERVICES P.C., TONG LI, MD, PC, US TECH REHAB INC., VISION REHAB PT, P.C., WEALTH OF HEALTH MEDICAL P.C., WINTHROP FIRST CARE MEDICAL SERVICES, P.C., XU GAO ACUPUNCTURE PC, ACCELERATED SURGICAL CENTER OF NORTH JERSEY, ANGELICA SARENAS, BARNETT SURGICAL CENTER; BARRY HUGHES, OR ASSIST, PA, DANAWOLFSON, LMT, DR. LEE LOEWINGER, ELECTRO PHYSIOLOGIC MEDICAL DIAGNOSTICS, PC, EXCEL S,URGERY CENTER, LLC, FRANCES SARIYA, GOTHAM MEDICAL SERVICES, HAAR ORTHOPEDICS & SPORTS MEDICINE, HEALTH EAST AMBULATORY SURGICAL CENTER, ILYCE MARANGA, JEFFREY BECK, JOHN IOZZIO, JUAN XU D.B.A. ADDITION ACUPUNCTURE, PC, KSENIA PAVLOVA, D.O., MAXIMUM ORTHOPAEDICS AND SPORTS MEDICINE, MEDRITEURGENT CARE, MIDMARK DIAGNOSTICS GROUP, NATASHA KELLY, MD, NEW YORK ORTHOPAEDIC SURGERY & . INDEX NO. 160580/2015 . 2 3 of 5 [*FILED: NEW YORK COUNTY CLERK 09/29/2017 02:11 PM 3] NYSCEF DOC. NO. 407 INDEX NO. 160580/2015 RECEIVED NYSCEF: 09/29/2017 REHABILITATION, NORTHEAST ANESTHESIA AND PAIN MANAGEMENT, PDCN EMERGENCY AMBULANCE, SOUTH DEAN ORTHOPAEDICS, SPECIALTYSURGERY OF SECAUCUS, LLC, SPORTS MEDICINE~& ORTHOPAEDIC REHAB, PC, SPINE & ORTHOPAEDIC REHABILITATION CENTER, TITAN PHARMACY, USAA HEALTH PRODUCTS, INC., WINTHROP UNIVERSITY HOSPITAL, Cross-Claim Defendants. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Notice of Motion/Affidavits/Affirmations/ Memoranda of Law annexed Opposition Affidavits/ Affirmations/Memoranda of Law annexed Numbered 1 2 ERIKA M. ED WARDS, J.: Plaintiff Encompass Home & Auto Insurance Company ("Plaintiff') moves for leave to reargue the Decision and Order of the court dated, October 3, 2016, which denied Plaintiffs application to stay multiple arbitrations and other proceedings involving the August 25, 2014, acci<:fent that is the subject of the underlying matter. Defendants Sovern Medical Supply, Corp., SP Orthotic Surgical & Medical Supply, Inc., and Ksenia Pavlova, D.O. (collectively "Defendants") oppose the motion. For the reasons set forth herein, the court denies Plaintiffs motion. Pursuant to CPLR 222l(a) and (d)(2), a motion for leave to reargue is left to the sound discretion of the court and may be granted only where the moving party contends that an issue of law or fact had b~en overlooked or misapprehended by the court when deciding the original motion (CPLR §§ 222l[a] and [d][2]). Itis not designed to provide the unsuccessful party successive opportunities to reargue issues previously decided by the court or to present new 3 4 of 5 [*FILED: NEW YORK COUNTY CLERK 09/29/2017 02:11 PM 4] NYSCEF DOC. NO. 407 INDEX NO. 160580/2015 RECEIVED NYSCEF: 09/29/2017 evidence or different arguments than previously raised (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [151 Dept 1992] [internal citations and quotation marks omitted]). Here, Plaintiff argues in substance that the court failed to review all the evidence in support of the motion. Specifically, Plaintiff argues that the court failed to review transcripts of multiple defendants' Examinations Under Oath ("EU Os"). Furthermore, Plaiptiff argues that the court failed to consider that Plaintiff would be entitled to relief as a result of the failure of several defendants to appear for EUOs. Defendants oppose the motion and argue in substance that the court should deny Plaintiffs motion because Plaintiff failed to demonstrate that this court overlooked any facts or misapplied any law in reaching its decision. Defendants further argue that Plaintiffs motion to reargue is mere repetition of the arguments within Plaintiffs application for the stay. This court finds that Plaintiff failed to set forth a sufficient l.egal or factual basis to demonstrate that the court overlooked an issue of law or fact. The court properly considered the applicable legal standards and relevant facts and determined that Plaintiff failed to demonstrate a likelihood of success on the merits based on the submitted EUO transcripts and the facts presented to the court at the time of the application. As such, the court denies Plaintiffs motion to reargue. Accordingly, it is hereby ORDERED that Plaintiffs motion for leave to reargue is denied. This constitutes the decision and order of the·court. Date: September 29, 2017 HON. ERIKA M. EDWARDS 4 5 of 5

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