A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 52513(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 24, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiffs D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C.; sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC and granted the branches of defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted by plaintiffs D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action is treated as an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see UDCA 1702); and it is further,

ORDERED that the appeal by plaintiff D.A.V. Chiropractic, P.C. is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as appealed from and reviewed, is modified by providing that so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC is stricken, and the matter is remitted to the District Court for a determination of said branch of plaintiffs’ motion; as so modified, the order is affirmed without costs. [*2]

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignors from March 2004 through July 2004, plaintiffs moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The District Court, sua sponte, stayed the action as to plaintiff A.B. Medical Services, PLLC (A.B. Med.) without determining the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., so that said plaintiff “can properly dissolve and obtain the appointment of a receiver or liquidation trustee to maintain the action,” denied the branches of plaintiffs’ motion seeking summary judgment in favor of plaintiffs Lvov Acupuncture, P.C. (Lvov) and D.A.V. Chiropractic, P.C. (D.A.V.), and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by Lvov and D.A.V. The instant appeal by plaintiffs ensued.

For the reasons stated in A.B. Med. Servs., PLLC a/a/o Beauliere v Travelers Indem. Co. (___ Misc 3d ___, 2009 NY Slip Op _____ [Appeal No. 2009-549 N C], decided herewith), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. without determining the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med. is granted, said provision is stricken, and the matter is remitted to the District Court for a determination of said branch of plaintiffs’ motion.

It is uncontroverted that defendant’s denial of claim forms and verification requests were proper and timely. Contrary to Lvov’s contention, the denial of claim forms pertaining to Lvov clearly informed it of the insurer’s position regarding any disputed matter (see Insurance Department Regulations [11 NYCRR] § 65-3.2 [e]), and included the information called for in the prescribed denial of claim form (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). As the remaining contentions asserted by Lvov have no merit, the District Court properly denied the branch of plaintiffs’ motion seeking summary judgment in favor of Lvov and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by Lvov.

We note that no issue is raised on appeal regarding so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by D.A.V. Accordingly, the appeal by D.A.V. is deemed abandoned (see e.g. Pizzaro v State of New York, 19 AD3d 891 [2005]) and is, therefore, dismissed.

In remitting the matter for determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 09, 2009