November 30, 2011

Five Boro Psychological Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 52197(U))

Headnote

A defaulting provider may not appeal an order dismissing its complaint entered after it failed to oppose the insurer's motion. The insurer moved under CPLR 3211 (a) (2) to dismiss the assigned no-fault action and obtained a stay pending determination. The parties then stipulated to a new motion schedule and return date. The provider submitted no opposition papers by that date, so the dismissal order was deemed entered on default. The Appellate Term, Second Department, dismissed the provider's appeal because no appeal lay by the defaulting party.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 52197(U))

[*1]
Five Boro Psychological Servs., P.C. v Allstate Ins. Co.
2011 NY Slip Op 52197(U) [33 Misc 3d 141(A)]
Decided on November 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2010-1193 K C.
Five Boro Psychological Services, P.C. as Assignee of David Ran, Appellant,

against

Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered September 22, 2009. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant’s motion by the new return date, the order granting defendant’s motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

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