Parnis v. Karabelnikas

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 8, 2017
• Docket: 2017 NYSlipOp 50203(U)
• Status: Published

Opinion

Rozaliya Parnis, Appellant,

against

Shmuel Karabelnikas, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 28, 2015. The order denied plaintiff's motion to, in effect, vacate so much of a prior order of the same court dated June 11, 2014 as provided that plaintiff's cause of action was discontinued with prejudice, and to restore plaintiff's cause of action to the calendar.

ORDERED that the order entered January 28, 2015 is reversed, without costs, and plaintiff's motion to, in effect, vacate so much of the June 11, 2014 order as provided that plaintiff's cause of action was discontinued with prejudice, and to restore plaintiff's cause of action to the calendar is granted.

Plaintiff commenced this action to recover damages due to defendant's alleged failure to obtain proper automobile insurance coverage for plaintiff. In an order dated June 11, 2014, the Civil Court (Noach Dear, J.) stated, among other things, that plaintiff's cause of action was discontinued with prejudice. Shortly thereafter, plaintiff moved to, in effect, vacate so much of the June 11, 2014 order as provided that plaintiff's cause of action was discontinued with prejudice, and to restore its cause of action to the calendar. By order entered January 28, 2015, the Civil Court (Noach Dear, J.) denied the motion on the ground that the action had been "discontinued in court [with prejudice] by plaintiff's counsel." This appeal ensued.

Under the circumstances presented, plaintiff's motion should have been granted. While the order entered January 28, 2015 indicates that the discontinuance was sought by "plaintiff's counsel," there is nothing contained in this sparse record which supports such a conclusion.

We note that plaintiff's remaining contentions raised on appeal are either without merit or not properly before this court as they are being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order entered January 28, 2015 is reversed and plaintiff's motion to, in effect, vacate so much of the June 11, 2014 order as provided that plaintiff's cause of action was discontinued with prejudice, and to restore plaintiff's cause of action to the calendar is granted.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: February 08, 2017