| Kuzmin v Visiting Nurse Serv. of N.Y. |
| 2008 NY Slip Op 08462 [56 AD3d 438] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Tatiana Kuzmin, Appellant-Respondent, v Visiting NurseService of New York et al., Defendants, and Oleg Beretsky,Respondent-Appellant. |
—[*1] Collazo Carling & Mish, LLP, New York, N.Y. (Melany R. Gray of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for sexual harassment in violation of ExecutiveLaw § 296 and for assault and battery, the plaintiff appeals, as limited by her brief, from somuch of an order of the Supreme Court, Queens County (Dollard, J.), entered May 30, 2007, asdenied her motion for an award of an attorney's fee and the imposition of sanctions and, suasponte, struck the affidavits of correction for the deposition transcripts of the plaintiff andnonparty Lola Smirnova, and the defendant Oleg Beretsky cross-appeals from so much of thesame order as awarded the plaintiff costs and disbursements in the sum of $3,154.20.
Ordered that the cross appeal by the defendant Oleg Beretsky is dismissed as abandoned; andit is further,
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, struck the affidavits of correction for the deposition transcripts of the plaintiff andnonparty Lola Smirnova is treated as an application for leave to appeal from that portion of theorder, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant Oleg Beretsky.[*2]
Contrary to the plaintiff's contention, the Supreme Courtproperly denied that branch of her motion which was for an award of sanctions. The recordsupports the court's conclusion that counsel for the defendant Oleg Beretsky did not engage infrivolous or improper conduct. The court also properly denied that branch of the plaintiff'smotion which was for an award of an attorney's fee, as the plaintiff is not an attorney, she is nolonger represented by counsel, and her prior counsel did not seek payment (see Matter ofLeeds v Burns, 205 AD2d 540 [1994]; Logue v Cottage Assoc., 66 AD2d 769, 770[1978]).
The plaintiff challenges the propriety of three prior orders of the Supreme Court datedSeptember 20, 2001, November 13, 2002, and May 20, 2003, respectively. However, theplaintiff's arguments regarding the orders dated September 20, 2001 and May 20, 2003 are notproperly before this Court, as she did not appeal from those orders (see Matter of Iorio v Hyler, 49 AD3d738, 739 [2008]; Osorio v KenartRealty, Inc., 48 AD3d 650, 653-654 [2008]). To the extent the plaintiff raises argumentsregarding the prior order dated November 13, 2002 from which her appeal was dismissed asabandoned, these arguments are not properly before this Court in the context of this appeal (see Gihon, LLC v 501 Second St., LLC,51 AD3d 969, 970 [2008]).
The Supreme Court properly struck the affidavits of correction submitted by the plaintiffinasmuch as she failed to provide a sufficient explanation for the significant changes to thedeposition testimony (see Kelley vEmpire Roller Skating Rink, Inc., 34 AD3d 533, 534 [2006]; Rodriguez v Jones,227 AD2d 220 [1996]).
The plaintiff's remaining contentions are without merit. Spolzino, J.P., Ritter, Santucci andCarni, JJ., concur. [See 2007 NY Slip Op 31607(U).]