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Long Island Spine Rehabilitation Medicine, P.C v. Ira Levine

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 3, 2011

LONG ISLAND SPINE REHABILITATION MEDICINE, P.C.,
RESPONDENT,
v.
IRA LEVINE,
APPELLANT.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated November 23, 2009. The order denied defendant's motion for leave to renew his prior "motion to preclude [plaintiff] for defective bill of particulars," and, sua sponte, directed defendant to comply with plaintiff's discovery demands.

Long Is. Spine Rehabilitation Medicine, P.C. v Levine

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2011

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

ORDERED that so much of the appeal as is from the portion of the order that directed defendant to comply with plaintiff's discovery demands is dismissed as that portion of the order did not determine a motion made on notice and is not appealable as of right (UDCA 1702 [a]); and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, without costs.

Plaintiff brought this action to recover the sum of $5,665 for medical services allegedly rendered to defendant from March 11, 2008 through May 6, 2008. Defendant served a verified answer and a demand for a bill of particulars. Thereafter, plaintiff served defendant with discovery demands and a response to defendant's demand for a bill of particulars. When defendant failed to respond to plaintiff's discovery demands, plaintiff moved to compel discovery, and the District Court granted plaintiff's motion. Defendant twice sought to preclude plaintiff, but these motions were either withdrawn by defendant or rejected by the clerk of the court. Defendant subsequently sought leave to renew his prior "motion to preclude for defective bill of particulars." By order dated November 23, 2009, the District Court denied defendant's motion seeking leave to renew his "motion to preclude," and directed defendant to comply with plaintiff's discovery demands.

A motion for leave to renew a prior motion "must be based upon facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]). As the District Court correctly noted, there was no "prior determination" of defendant's two prior motions. Consequently, the motion for leave to renew was properly denied. Even if we were to treat the motion as, in effect, seeking the ultimate relief of precluding plaintiff for serving a defective bill of particulars, defendant did not demonstrate how plaintiff's response to his demand for a bill of particulars was in any way defective.

Accordingly, the order of the District Court, insofar as reviewed, is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

Decision Date: May 03, 2011

20110503

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