<partyblock><br><br><div align="center"><b><font size="+1">Maria S. Masigla, P.T., as Assignee ofLigene, Joanel, Respondent, <br><br>against<br><br>Omni Indemnity Company, Appellant.</font></b></div><br><br><p>Freiberg, Peck &amp; Kang, LLP (Yilo J. Kang of counsel), for appellant.The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.</p><p>Appeal from an order of the Civil Court of the City of New York, Kings County (RobinKelly Sheares, J.), entered August 12, 2016. The order denied defendant's motion for summaryjudgment dismissing the complaint.</p><p>ORDERED that the order is reversed, with $30 costs, and defendant's motion for summaryjudgment dismissing the complaint is granted; and it is further,</p><p>ORDERED that, on the court's own motion, counsel for the respective parties are directed toshow cause why an order should or should not be made and entered imposing such sanctions andcosts, if any, against plaintiff's counsel pursuant to Rules of the Chief Administrator of theCourts (22 NYCRR) ยง 130-1.1 (c) as this court may deem appropriate, by each filing anaffidavit or affirmation on that issue in the office of the clerk of this court and serving one copyof same on each other on or before January 31, 2019; and it is further,</p><p>ORDERED that the clerk of this court, or his designee, is directed to serve a copy of thisdecision and order to show cause by regular mail upon counsel for the respective parties.</p><p>In this action by a provider to recover assigned first-party no-fault benefits, defendant <font color="FF0000">[*2]</font>appeals from an order of the Civil Court denying defendant'smotion which had sought summary judgment dismissing the complaint on the ground thatdefendant had not issued an insurance policy covering the vehicle which was involved in theaccident in question and that, therefore, plaintiff had sued the wrong party.</p><p>In support of its motion, defendant submitted affidavits by its litigation manager and by amanager of American Independent Insurance Company (AIIC), which affidavits sufficientlyestablished defendant's lack of coverage defense (<a href="../2013/2013_51450.htm" target="_blank"><i>see Great Health Care Chiropractic, P.C. v Omni Indem. Co.</i>, 40 Misc3d 139</a>[A], 2013 NY SlipOp 51450[U] [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists2013]; <a href="../2011/2011_50743.htm" target="_blank"><i>Astoria Quality Med. Supply vState Farm Mut. Auto. Ins. Co.</i>, 31 Misc 3d 138</a>[A], 2011 NY Slip Op 50743[U] [AppTerm, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2011]). Notably, the AIIC manager attested thather company had issued the policy covering the accident in question. Plaintiff failed to raise anissue of fact in response. As defendant demonstrated that plaintiff had sued the wrong insurancecarrier, defendant was entitled to summary judgment dismissing the complaint (<a href="../2015/2015_51294.htm" target="_blank"><i>see Tam Med. Supply Corp. v Omni Indem.Co.</i>, 48 Misc 3d 142</a>[A], 2015 NY Slip Op 51294[U] [App Term, 2d Dept, 2d, 11th&amp; 13th Jud Dists 2015]; <a href="../2014/2014_50224.htm" target="_blank"><i>VincentMed. Servs., P.C. v Omni Indem. Co.</i>, 42 Misc 3d 142</a>[A], 2014 NY Slip Op 50224[U][App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2014]).</p><p>We conclude that sanctions may be warranted for the conduct of counsel for plaintiff, as thatconduct appears to be frivolous (<a href="../2014/2014_02560.htm" target="_blank"><i>seeFlushing Expo, Inc. v New World Mall, LLC</i>, 116 AD3d 826</a> [2014]; <a href="../2013/2013_07720.htm" target="_blank"><i>Ram v Torto</i>, 111 AD3d 814</a>[2013]). As relevant here, frivolous conduct includes the assertion of arguments that are"completely without merit in law and [which] cannot be supported by a reasonable argument foran extension, modification or reversal of existing law" (Rules of Chief Admin of Cts [22NYCRR] ยง 130-1.1 [c] [1]). Since 2013, plaintiff and/or other providers represented byplaintiff's counsel have been before this court more than 20 times in similar actions wherein theseproviders, while represented by plaintiff's counsel, have made the same or essentially the samearguments which plaintiff raises in the instant appeal (<a href="../2017/2017_51767.htm" target="_blank"><i>see e.g. Masigla v Omni Indem. Co.</i>, 58 Misc 3d 131</a>[A], 2017 NYSlip Op 51767[U] [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2017]; <a href="../2017/2017_51731.htm" target="_blank"><i>Maiga Prods. Corp. v Omni Indem.Co.</i>, 58 Misc 3d 129</a>[A], 2017 NY Slip Op 51731[U] [App Term, 2d Dept, 2d, 11th&amp; 13th Jud Dists 2017]; <a href="../2017/2017_51255.htm" target="_blank"><i>Island LifeChiropractic, P.C. v Omni Indem. Co.</i>, 57 Misc 3d 134</a>[A], 2017 NY Slip Op 51255[U][App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2017]; <a href="../2016/2016_50527.htm" target="_blank"><i>Compas Med., P.C. v Omni Indem. Co.</i>, 51 Misc 3d 134</a>[A], 2016NY Slip Op 50528[U] [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2016]; <a href="../2016/2016_50524.htm" target="_blank"><i>Arguelles M.D., P.C. v Omni Indem.Co.</i>, 51 Misc 3d 133</a>[A], 2016 NY Slip Op 50524[U] [App Term, 2d Dept, 2d, 11th&amp; 13th Jud Dists 2016]; <a href="../2015/2015_51294.htm" target="_blank"><i>Tam Med.Supply Corp. v Omni Indem. Co.</i>, 48 Misc 3d 142</a>[A], 2015 NY Slip Op 51294[U] [AppTerm, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2015]; <a href="../2013/2013_51450.htm" target="_blank"><i>Great Health Care Chiropractic, P.C. v Omni Indem. Co.</i>, 40 Misc 3d139</a>[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists2013]). Although defendant has prevailed in each appeal, plaintiff's counsel continues to advanceessentially the same arguments notwithstanding the fact that defendant's appellate brief expresslynotes that this court has previously considered and rejected the arguments put forth by plaintiff'scounsel and cites every such prior appeal. As plaintiff's counsel has persisted and raised the samearguments in the instant appeal, we direct counsel for the respective parties to <font color="FF0000">[*3]</font>show cause why sanctions should or should not be imposed againstplaintiff's counsel (<i>see Flushing Expo, Inc.</i>, 116 AD3d 826; <a href="../2013/2013_07720.htm" target="_blank"><i>Ram v Torto</i>, 111 AD3d 814</a>).</p><p>In light of the foregoing, the order is reversed, defendant's motion for summary judgmentdismissing the complaint is granted, and, on the court's own motion, counsel for the respectiveparties are directed to show cause why an order should or should not be made and enteredimposing such sanctions and costs, if any, against plaintiff's counsel pursuant to Rules of theChief Administrator of the Courts (22 NYCRR) ยง 130-1.1 (c) as this court may deemappropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk ofthis court and serving one copy of same on each other on or before January 31, 2019.</p><p>PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.</p><br>ENTER:<br>Paul Kenny<br>Chief Clerk<br>Decision Date: December 21, 2018<br><br><div align="center"><form method="LINK" action="../../slipidx/at_2_idxtable.shtml"><input type="submit" value="Return to Decision List"></form></div></partyblock>