Commissioners of the New York State Ins. Fund v New Generation Auto Care LLC

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Commissioners of the New York State Ins. Fund v New Generation Auto Care LLC 2019 NY Slip Op 33317(U) November 6, 2019 Supreme Court, New York County Docket Number: 151185/2017 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM NYSCEF DOC. NO. 72 INDEX NO. 151185/2017 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED PART Justice ----------------------------------------------------------------:---------X COMMISSIONERS OF THE NEW YORK STATE INSURANCE FUND, AS ASSIGNEE OF JOHN POST, ASSIGNOR, IAS MOTION 2EFM IN DEX NO. MOTION SEQ. Nb. 1511 85/2017 002 Plaintiff, -vNEW GENERATION AUTO CARE LLC and WEBSTER FOOD MART INC, DECISION AND ORDER Defendants. ---------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60,61,62, 63, 64, 65, 66, 69, 70, 71 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER . In this action seeking reimbursement of workers' compensation benefits paid to John Post ("Post"), plaintiff Commissioners of the New York State Insurance Fund ("NYSIF"), as assignee of Post, moves, pursuant to CPLR 222 I, to renew and reargue a prior motion by defendant Webster Food Mart Inc. ("Webster") to strike the complaint against it (motion sequence 001) (Docs. 9, 44). By order entered April 9, 2019 ("the 419119 order"), this Court dismissed the complaint against Webster given NYSIF's failure to comply with discovery demands (Docs. 39). Webster and defendant New Generation Auto Care LLC ("New Generation") (collectively "defendants") oppose the instant motion, and New Generation cross-moves for dismissal of the complaint against it (Docs. 59-66). NYSIF opposes New Generation's cross-motion (Doc. 69). After oral argument and a review of the parties' papers and the relevant statutes and caselaw, the motions are decided as follows. 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 1 of 7 Page 1of7 [*FILED: 2] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM NYSCEF DOC. NO. 72 INDEX NO. 151185/2017 RECEIVED NYSCEF: 11/08/2019 FACTUAL AND PROCEDURAL HISTORY In February 2014, Post was injured at his place of employment and was provided workers' compensation coverage by NYSIF (Doc. 1). Following Post's failure to commence an action against defendants, his causes of action against them were assigned to NYSIF pursuant to Workers' Compensation Law§ 29 (2) (Doc. 1). NYSIF then commenced this action against defendants by filing a summons and verified complaint seeking a judgment to recover monies paid to Post (Doc. 1). Webster answered and served NYSIF with a demand for a bill of particulars and combined discovery demands (Docs. 6, 15). Together with its answer, New Generation served NYSIF with a demand for a bill of particulars, combined discovery demands and a notice for examination before trial (Doc. 8). In July 2017, Webster moved to strike the complaint against it given NYSIF's failure to comply with its discovery demands (motion sequence 001) ("the underlying motion") (Doc. 9), which this Court granted in the 4/9/19 order (Doc. 39). In its motion to renew and reargue, NYSIF argues, inter alia, that this Court overlooked certain matters of fact and law because it failed to consider that (I) NYSIF responded to, and attempted to comply with, Webster's discovery demands; and (2) a party assignee may not be sanctioned for an assignor's failure to provide discovery, since the assignor was not .within the assignee's control (Doc. 45). An attorney affirmation in,support ofNYSIF's motion affirms that, during a June 20 I 8 telephone conversation with NYSIF' s counsel, Post agreed to provide authorizations releasing records to NYSIF and that, when he failed to return the signed authorizations, NYSIF served Post with a subpoena compelling him, inter alia, to produce the requested authorizations (Doc. 45 at 3). NYSIF claims that "[t]hese events were not described in 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 2 of 7 Page 2 of7 [*FILED: 3] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM NYSCEF DOC. NO. 72 INDEX NO. 151185/2017 RECEIVED NYSCEF: 11/08/2019 / the previous motion because they occurred after [it submitted its] October 13, 2017 affirmation in opposition" (Doc. 45 at 3). Defendants oppose the motion, arguing, inter alia, that NYSIF's proffered new facts could have been raised during an appearance on the underlying motion on April 2, 2019, and therefore are not the proper subject of a motion to reargue (Docs. 60, 66). Moreover, assert defendants, NYSIF's failure to raise legal theories ·in the underlying motion prevents it from raising them on a motion to reargue. Webster also claims that the motion to renew should be denied insofar as NYSIF's attempts to obtain discovery from Post were made before the April 2, 2019 appearance and could have been addressed at such time (Doc. 66). New Generation cross-moves for dismissal of the complaint against it arguing, inter alia, that it is entitled to the same relief granted to Webster because NYSIF has also failed to respond to its demand for a bill of particulars and combined discovery demands (Doc. 60). LEGAL CONCLUSION: "A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision" (William P. Pahl Equip. Corp. v Kassis, I S2 AD2d 22, 27 [ 1992] [internal quotation marks and citation omitted], Iv dismissed in part and denied in part 80 NY2d I 005 [ 1992]; see CPLR 2221 [d] [2]; Foley v Roche, 68 AD2d 558, 567 [lst Dept 1979]). It is well settled that "[r]eargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided ... or to present arguments different from those originally asserted" (Matter of 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 3 of 7 Page 3 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM NYSCEF DOC. NO. 72 INDEX NO. 151185/2017 RECEIVED NYSCEF: 11/08/2019 Setters v Al Props. & De vs. (USA) Corp., 139 AD3d 492, 492 [I st Dept 2016] [internal quotation marks and citation omitted]). On a motion to renew, a movant must demonstrate that there are "new facts not offered on the prior motion that would change the prior dete.rmination or ... [that] there has been a change in the law that would change the prior determination" and there must be a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [ef[2], [3]; see Ezzard v One E. Riv. Place Realty Co., LLC, 137 AD3d 648, 649 [1st Dept 2016]). Here, NYSIF contends that the 419119 order overlooked facts establishing its compliance with various demands by Webster and, thus, incorrectly held that NYSIF failed "to provide any discovery t,o [Webster]" [emphasis added] (Doc. 39). Given that this Court was technically incorrect in finding that NYSIF failed to provide We~ster with any discovery, it grants reargument but adheres to its original determination insofar as NYSIF nevertheless fails to establish substantial compliance with Webster's demands. NYSIF.argues that the only outstanding discovery was within Post's control, that NYSIF lacks control over Post, and that this Court cannot sanction it for failing to provide such discovery. However, NYSIF failed to advance this specific theory of law in the underlying motion and it is thus not the proper subject of a motion to reargue (see DeSoignies v Cornasesk House Tenants' Corp., 21 AD3d 715, 718 [1st Dept 2005];.Frisenda vX Large Enters., 280 AD2d 514, 515 [2d Dept 2001]). NYSIF claims that Post agreed to sign the authorizations on June 5, 20 I 8 and he was served with a subpoena for, inter alia, medical and employment records and HIP AA authorizations on February 22, 2019 (Doc. 45 at 3). These efforts were made prior to the parties' court appearance on April 2, 2019 regarding the underlying motion, and NYSIF failed to raise these arguments at that juncture. Since NYSIF failed to argue that it was zealously pursuing the 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 4 of 7 Page4 of 7 [*FILED: 5] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM INDEX NO. 151185/2017 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 11/08/2019 discovery which was the subject of the underlying motion, it fails to demonstrate how this Court overlooked these alleged efforts (s~e CPLR 2221 [d] [2]; see Mazinov v Rella, 79 AD3d 979, 979 [2d Dept 20 IO]). NYSIF's motion to renew is also denied. NYSIF fails to present a reasonable justification for its failure to inform this Court, during the parties' appearance on April 2, 2019, about its efforts to obtain discovery from Post; therefore, these "new facts" cannot serve as a basis for granting renewal (see CPLR 2221 [e] [3]; Rowe v NYCPD, 85 AD3d 1001, 1003 [2d Dept 2011]; Prime Income Asset. Mgt., Inc. v American Real Estate Holdings LP., 82 AD3d 550, 551-552 [I st Dept 2011 ], Iv denied 17 NY3d 705 [2011 ]). With respect to New Generation's cross-motion, that entity served NYSIF with a demand . for a bill of particulars and discovery demands in April 2017 (Doc. 62). New Generation maintains that responses to its demands are still.outstanding (Doc. 60). NY,SIF's responses to New Generation's combined demands, annexed to its affirmation in opposition to the cross-:. motion and in further support of its motion to reargue, establish that it failed to comply with many of these demands (Doc. 69-70). However, since the facts about NYSIF's additional efforts to obtain authorizations from Post are properly raised in opposition to the cross-motion, lending credence to NYSIF's argument in response to the cross-motion that the discovery sought is outside of its control, New Generation's cross-motion is hereby denied (see Cap Rents Supply, LLC v Durante, .167 AD3d 700, 702 [2d Dept 2018]; Ayala v Lincoln Med. & Mental Health Ctr., 92 AD3d 542, 542 [lst Dept 2012]; Commerce and Indus. Ins. Co. v Entertainment Services, Inc., 2009 NY Slip Op 30876 fU] [Sup Ct, New York County, 2009]). The remaining arguments are either without merit or need not be addressed given the findings above. 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 5 of 7 Page 5 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM NYSCEF DOC. NO. 72 INDEX NO. 151185/2017 RECEIVED NYSCEF: 11/08/2019 Therefore, in accordance with the foregoing, it is hereby: ORDERED that the branch of the motion by plaintiff Commissioners of the State of the New York State Insurance Fund's ("NYSIF"), as assignee of John Post, assignor, seeking reargument of defendant Webster Food Mart Inc. 's motion to dismiss the complaint (motion sequence 001) is granted and, upon reargument, this Court adheres tojts prior decision; and it is further ORDERED that the branch of the motion by plaintiff Commissioners of the State of the New York State Insurance Fund's ("NYSIF"), as assignee of John Post, assignor, seeking renewal of defendant Webster Food Mart Inc. 's motion to dismiss the complaint against it (motion sequence 001) is denied; and it is further ORDERED that the cla.ims against defendant Webster Food Mart Inc. are hereby severed and dismissed, and the Clerk is directed to amend the caption to reflect the dismissal and to enter judgment a,ccordingly; and it is further ORDERED that defendant New Generation Auto Care LLC's cross-motion, pursuant to CPLR 3126, to strike the complaint and dismiss this case against it is denied; and it is further 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 6 of 7 Page 6 of 7 [*FILED: 7] NEW YORK COUNTY CLERK 11/08/2019 11:35 AM NYSCEF DOC. NO. 72 INDEX NO. 151185/2017 RECEIVED NYSCEF: 11/08/2019 ORDERED that, within 20 days after entry of this order, counsel for Webster Food Mart Inc. shall serve a copy of this order, with notice of entry, upon all parties, on the Trial Support Clerk located in the General Clerk's Office (Room I 19), and on the County Clerk (Room 1418), by efiling protocol; and it is further ORDERED that counsel are directed to appear for a previously scheduled preliminary conference in Room 280, 80 Centre Street, on November 26, 2020, at 2: I 5 PM; and it is further / ORDERED that this constitutes the decision and order of the court. 11/6/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-Fl DENIED L DISPOSITION SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 151185/2017 COMMISSIONERS OF THE NEW vs. NEW GENERATION AUTO CARE LLC Motion No. 002 7 of 7 D D GRANTED IN PART SETTLE ORDER ! OTHER REFERENCE Page 7 of 7

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