December 23, 2011

Acupuncture Works, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52374(U))

https://www.beynensonlaw.com/case-law/acupuncture-works-p-c-v-interboro-ins-co-2011-ny-slip-op-52374u/

Court: Appellate Term, Second Department
Decided: December 23, 2011
Citation: 2011 NY Slip Op 52374(U) · 34 Misc 3d 134(A)
Posture: Default or vacatur
Outcome: Provider prevailed
Issues: Defaults and vacatur

Cite as

Acupuncture Works, P.C. v Interboro Ins. Co., 34 Misc 3d 134(A), 2011 NY Slip Op 52374(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 granting a motion without written opposition is entered on default and is not appealable, even if the motion was orally argued. The insurer submitted no written opposition to the provider's summary judgment motion, which Civil Court granted. Under CPLR 5501 (c), the appeal from that order was deemed taken from the ensuing judgment. The Appellate Term, Second Department, dismissed the appeal because the judgment rested on a default order. Although Civil Court later denied vacatur on the ground that there had been no default, the insurer's remedy was reargument of, or an appeal from, that denial.

Reported in New York Official Reports at Acupuncture Works, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52374(U))

[*1]

Acupuncture Works, P.C. v Interboro Ins. Co.

2011 NY Slip Op 52374(U) [34 Misc 3d 134(A)]

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-1926 K C.

Acupuncture Works, P.C. as Assignee of JACQUELINE ROMAN GARCIA, Respondent, – –
against
Interboro Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010, deemed from a judgment of the same court entered April 26, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 5, 2010 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,455.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant failed to submit written opposition, and the Civil Court, by order entered February 5, 2010, granted plaintiff’s motion.
Thereafter, defendant moved to vacate the February 5, 2010 order, which motion the
court denied, by order dated May 19, 2010, finding that “[t]here was no default in this case.” Defendant appeals from the February 5, 2010 order, which appeal is deemed to be from the subsequently entered judgment (see CPLR 5501 [c]).

“Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion” (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]; see also Astoria Wellness Med., P.C. v State [*2]Farm Mut. Auto. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52008[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, the appeal from the judgment entered pursuant to the default order must be dismissed.

We note that defendant’s remedy, if it be so advised, is to move to reargue the May 19, 2010 order or to file a notice of appeal therefrom.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

Cited in this decision

Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co. (2010 NY Slip Op 52008(U))The insurer failed to reasonably explain its failure to refile opposition papers after the clerk identified the filing error.

Similar decisions

Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U))The provider's conclusory, undetailed and uncorroborated claim of law office failure did not excuse its default.
N.S. Acupuncture Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51258(U))The provider's appeal from the grant of the insurer's unopposed vacatur cross motion was dismissed because no appeal lies from a party's default.
VG Acupuncture, P.C. v Interboro Ins. Co. (2014 NY Slip Op 50410(U))The provider failed to establish entitlement to a default judgment because it did not show that its claim was overdue or improperly denied.
Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.