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Brookhaven Magnetic Resonance Imaging, Inc. Formerly Known As v. South Shore Neurologic Associates

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


May 3, 2011

BROOKHAVEN MAGNETIC RESONANCE IMAGING, INC. FORMERLY KNOWN AS
NMR MANAGEMENT CORP.,
RESPONDENT,
v.
SOUTH SHORE NEUROLOGIC ASSOCIATES, P.C.,
APPELLANT.

Appeal from an order of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), dated May 10, 2010. The order denied South Shore Neurologic Associates, P.C.'s motion to join a necessary party and to dismiss the proceeding.

Brookhaven Magnetic Resonance Imaging, Inc. v South Shore Neurologic Assoc., P.C.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 the order is affirmed, without costs.

In this holdover proceeding brought by a commercial tenant against its subtenant, the subtenant (appellant) moved to join the prime landlord as a necessary party and to dismiss the petition. The District Court denied the motion, and we affirm.

In its brief on appeal, appellant appears to have abandoned all of the arguments that it raised in its initial moving papers and relies instead upon arguments raised for the first time in its reply papers. Arguments raised for the first time in reply papers should not be considered (e.g. HSBC Bank of Nevada, N.A. v Okocha, 26 Misc 3d 145[A], 2010 NY Slip Op 50451[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Investment Props. Assoc. v Massoud & Massoud, 15 Misc 3d 143[A], 2007 NY Slip Op 51106[U] [App Term, 1st Dept 2007]; Globe Indem. Co. v Mike's Heavy Duty Towing Inc., 5 Misc 3d 139[A], 2004 NY Slip Op 51634[U] [App Term, 2d & 11th Jud Dists 2004]). Thus, appellant has failed to demonstrate on appeal any proper basis for the granting of its motion. Moreover, the grounds asserted by appellant in its initial papers appear to be meritless. We also note that, contrary to appellant's assertion in its brief, appellant did not seek a stay of this proceeding in its notice of motion. Thus, again contrary to appellant's argument, the District Court did not err in failing to grant a stay (see Arriaga v Laub Co., 233 AD2d 244, 245 [1996]).

Accordingly, the order denying appellant's motion is affirmed.

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

Decision Date: May 03, 2011

20110503

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