December 23, 2011

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

Headnote

The court considered the fact that in an action by a provider to recover assigned first-party no-fault benefits, the plaintiff had moved for summary judgment and the defendant failed to submit written opposition. The Civil Court granted the plaintiff's motion, and the defendant subsequently moved to vacate the order, which was denied by the court. The issue decided was whether an order granting a motion is appealable if the opposing party fails to submit written opposition, even if the party orally argued the motion. The holding of the case was that 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. Therefore, the appeal from the judgment entered pursuant to the default order was dismissed. The defendant's remedy, if so advised, was to move to reargue the denied order or to file a notice of appeal therefrom.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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