Dixon v New York City Health & Hosps. Corp.

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Dixon v New York City Health & Hosps. Corp. 2023 NY Slip Op 31617(U) May 10, 2023 Supreme Court, New York County Docket Number: Index No. 805079/2021 Judge: Erika M. Edwards 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. INDEX NO. 805079/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/10/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ERIKA M. EDWARDS Justice ----------------------------------------------------------------- ----------------X CHARMAINE DIXON, as Administratrix of the Estate of TAMEL DIXON, Deceased, and CHARMAINE DIXON, Individually, 10M INDEX NO. MOTION DATE 805079/2021 12/21/2022 003 MOTION SEQ. NO. Plaintiff, - V - NEW YORK CITY HEAL TH AND HOSPITALS CORPORATION, HARLEM HOSPITAL CENTER, MICHAEL ANTHONY DEVITA, M.D., CHIAGOZIE NWAKANMA, M.D., CHRISTIAN BENJAMIN BOAMAH, JR., M.D., and ADEL HANANDEH, M.D., DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER Upon the foregoing documents, the court denies Plaintiff Charmaine Dixon, as Administratrix of the Estate of Tamel Dixon, Deceased's, and Charmaine Dixon, Individually's ("Plaintiff') motion to reargue and renew this court's Decision and Order, dated November 22, 2022, denying Plaintiffs motion for a default judgment as to Defendant Adel Hanandeh, M.D. ("Dr. Hanandeh") and for alternative relief. Under motion sequence 001, Plaintiff previously moved for an extension of time to serve Dr. Hanandeh with the summons and complaint or for an order deeming service upon him as timely nune pro tune. In a decision and order, dated February 14, 2022, the court granted in part Plaintiffs motion by granting Plaintiff a 30-day extension of time to serve Dr. Hanandeh. The court denied Plaintiffs request to deem Plaintiffs purported service on him at his last known address in Ohio, which was his parents' home, as timely nune pro tune. 805079/2021 CHARMAINE DIXON, AS vs. NEW YORK CITY HEAL TH AND Motion No. 003 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 805079/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/10/2023 Plaintiff previously moved under motion sequence 002 for an order granting a default judgment in favor of Plaintiff as against Defendant Dr. Hanandeh and scheduling an inquest to assess damages, or in the alternative, Plaintiff moved to renew his previous motion for an order extending time to serve Dr. Hanandeh with the summons and complaint for good cause shown and in the interest of justice, directing defense counsel to provide Plaintiff's counsel with Dr. Hanandeh's current residential, work and email addresses and granting Plaintiff leave to serve Dr. Hanandeh by alternate means via email. In a decision and order, dated November 22, 2023, the court denied Plaintiff's motion and found that Plaintiff failed to demonstrate her entitlement to the relief requested. The court determined that Plaintiff failed to properly serve Dr. Hanandeh with the summons and complaint and failed to demonstrate diligent efforts to locate and serve Dr. Hanandeh during the additional 30-day extension provided by the court. Therefore, the court denied Plaintiff's requests to enter a default judgment against Dr. Hanandeh and to schedule an inquest for the assessment of damages, to grant another extension of time to serve Dr. Hanandeh, to direct defense counsel to provide Plaintiff's counsel with Dr. Hanandeh' s current residential, work and email addresses and to grant Plaintiff leave to serve Dr. Hanandeh by alternate means via email. Plaintiff now moves under motion sequence 003 for leave to reargue and renew the court's decision and order. Upon reargument, Plaintiff moves for an order reversing the court's previous ruling and granting Plaintiff's relief requested in her motion, pursuant to CPLR 2221 (d) and (e), respectively. Plaintiff argues in substance that the court overlooked critical facts and matters oflaw and Plaintiff provided an affidavit, dated November 22, 2022, from Aslinan Turan, the Operations Manager of Lexitas, also known as PM Legal, LLC, which was the process server retained by Plaintiff, as new evidence for the court's consideration. 805079/2021 CHARMAINE DIXON, AS vs. NEW YORK CITY HEAL TH AND Motion No. 003 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 805079/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/10/2023 Defendants New York City Health and Hospitals Corporation and Dr. Hanandeh oppose Plaintiffs motion and argue in substance that Plaintiff repeated the same arguments that Plaintiff previously raised in her prior two motions and that such arguments were previously considered and rejected by the court. Pursuant to CPLR 2221(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 been overlooked or misapprehended by the court when deciding the original motion (CPLR 2221[d][2]). Pursuant to CPLR 2221(e)(2), a motion for leave to renew shall be based on new facts not offered in the prior motion that would change the court's prior determination or it shall demonstrate that there has been a change in the law that would change the court's prior determination (CPLR 2221[e][2]). Additionally, a motion to renew shall contain reasonable justification for failure to present such facts on the prior motion (CPLR 2221 [e] [3]). Motions to reargue or renew are not designed to provide the unsuccessful party successive opportunities to reargue issues previously decided by the court or to present new evidence or different arguments than previously raised (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1 st Dept 1992] [internal citations and quotation marks omitted]). Here, the court finds that Plaintiff failed to demonstrate her entitlement to any of the relief requested. Plaintiffs motion to reargue includes the same arguments raised in Plaintiffs previous motions and Plaintiff failed to establish that the court overlooked or misapprehended the facts or law. As noted by the court in its prior decision, dated November 22, 2022, "[t]he court considered any additional arguments raised by the parties which were not specifically 805079/2021 CHARMAINE DIXON, AS vs. NEW YORK CITY HEAL TH AND Motion No. 003 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 805079/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/10/2023 addressed herein and the court denies all additional requests for relief not expressly granted herein." As to Plaintiffs motion to renew, the court finds that Plaintiff failed to demonstrate that the affidavit from the process service contains any new information. It simply recounts the previous searches and attempts to serve Dr. Hanandeh, which occurred prior to the filing of Plaintiffs reply on her previous motion and the exhibits include updated searches conducted after the reply was filed in an apparent attempt to create "new" information. Such information was readily available to Plaintiff and most of it was included in the exhibits submitted to the court which were previously considered by the court. Additionally, such purported "new" information does not include new facts that would change the court's prior decision. As to Defendant Dr. Hanandeh' s request for the court to dismiss the complaint against him, the court declines to exercise its discretion at this time based on Defense counsel's request in the opposition papers. However, pursuant to CPLR 306-b, the court continues to find that service was not timely made upon Dr. Hanandeh, so the court would consider dismissal upon motion and an opportunity to be heard. Therefore, the court denies Plaintiffs motion in its entirety. The court considered any additional arguments raised by the parties which were not specifically addressed herein and the court denies all additional requests for relief not expressly granted herein. As such, it is hereby ORDERED that the court denies Plaintiff Charmaine Dixon, as Administratrix of the Estate of Tamel Dixon, Deceased's, and Charmaine Dixon, Individually's motion to reargue and 805079/2021 CHARMAINE DIXON, AS vs. NEW YORK CITY HEAL TH AND Motion No. 003 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 805079/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/10/2023 renew this court's Decision and Order, dated November 22, 2022, filed under motion sequence 003. This constitutes the decision and order of the court. 5/10/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ERIKA M. EDWARDS, J.S.C. ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 805079/2021 CHARMAINE DIXON, AS vs. NEW YORK CITY HEALTH AND Motion No. 003 [* 5] 5 of 5 OTHER REFERENCE Page 5 of 5

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