July 23, 2021

PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2021 NY Slip Op 50719(U))

https://www.beynensonlaw.com/case-law/pdg-psychological-p-c-v-state-farm-mut-ins-co-2021-ny-slip-op50719u/

Court: Appellate Term, Second Department
Decided: July 23, 2021
Citation: 2021 NY Slip Op 50719(U)
Posture: Other motion
Issues: Other

Cite as

PDG Psychological, P.C. v State Farm Mut. Ins. Co., 2021 NY Slip Op 50719(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An order that leaves a motion branch undecided is not appealable as to that branch. The Appellate Term, Second Department, dismissed the insurer's appeal from the Civil Court's failure to decide its request to toll no-fault statutory interest. The underlying motion also sought dismissal and discovery relief, but the insurer limited its appeal to interest tolling. The undecided branch remained pending. The appellate court declined to review a subsequent order addressing interest because neither that order nor its supporting motion papers appeared in the record, expressly leaving open whether the later order would be reviewable on this appeal under CPLR 5517.

Reported in New York Official Reports at PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2021 NY Slip Op 50719(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PDG Psychological, P.C., as Assignee of Glendon Steve Antoine, Respondent,
against
State Farm Mutual Insurance Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Law Office of David O’Connor, LLC (David O’Connor of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered April 18, 2018. The order, insofar as appealed from and as limited by the brief, failed to decide the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3126 and Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.17 (c), or, in the alternative, to strike the notice of trial, compel plaintiff to provide complete responses to defendant’s discovery demands and toll the accrual of no-fault statutory interest. By order entered April 18, 2018, the Civil Court denied the branch of defendant’s motion seeking to dismiss the complaint, granted the branches seeking to strike the notice of trial and compel discovery, and did not decide the branch seeking to toll the accrual of no-fault statutory interest.

Defendant’s appeal is limited by its brief to so much of the order as did not decide the branch of its motion seeking to toll the accrual of no-fault statutory interest. “However, no appeal lies from an order or portion thereof which fails to determine a motion or branch thereof (see Baez v First Liberty Ins. Corp., 95 AD3d 1250 [2012]). Thus, the branch of defendant’s motion which was not addressed by the Civil Court remains pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Katz v Katz, 68 AD2d 536, 542-543 [*2][1979])” (Quality Health Supply Corp. v Amica Mut. Ins. Co., 65 Misc 3d 157[A], 2019 NY Slip Op 51969[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). To the extent defendant, in a footnote in its brief, asks this court to review a subsequent order which addressed this issue, neither that order nor the underlying motion papers are in the record on appeal, and we decline the request without opining as to whether any such order would be reviewable upon this appeal (cf. CPLR 5517; Matter of Donato v Board of Educ. of Plainview, Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In view of the foregoing, we reach no other issue.

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

Quality Health Supply Corp. v Amica Mut. Ins. Co. (2019 NY Slip Op 51969(U)) FollowedAn order that fails to decide a branch of a motion does not permit an appeal from that omission.
Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U)) Contrasted (cf., but see)The provider failed to establish prima facie entitlement to summary judgment through admissible business records.

Similar decisions

A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 51520(U))The provider's failure to prosecute after denial of summary judgment justified tolling no-fault statutory interest.
GPM Chiropractic, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 51521(U))Statutory interest was tolled from November 26, 2005 to April 13, 2018 because the provider took no meaningful action to prosecute.
JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
A.M. Med. Servs., P.C. v Travelers Ins. Co. (2020 NY Slip Op 50459(U))The provider's statutory interest was tolled during its unreasonable delay between discovery responses and filing a notice of trial.
Pacific Med. Servs., P.C. v Country-Wide Ins. Co. (2020 NY Slip Op 51502(U))A sua sponte order vacating a no-fault judgment is not appealable as of right.