March 29, 2013

City Dental Servs., P.C. v Country Wide Ins. Co. (2013 NY Slip Op 50474(U))

Headnote

The relevant facts that the court considered were that the plaintiff, City Dental Services, P.C., sought to recover first-party no-fault benefits that were assigned to them. The defendant, Country Wide Insurance Company, attempted to file opposing papers almost two months after the stipulated due date, and the court rejected them, granting the plaintiff's motion on default. The main issue decided by the court was whether the defendant should be allowed to "renew and reargue" its opposition to the plaintiff's motion for summary judgment, and whether the previous default order should be vacated. The holding of the court was that the branch of the defendant's motion seeking leave to "renew" its opposition to plaintiff's motion for summary judgment was proper, as the defendant had defaulted in opposing the motion, and their remedy was to seek to vacate the default order. The court also noted that the branch of the plaintiff's motion seeking to vacate the previous order remained pending and undecided.

Reported in New York Official Reports at City Dental Servs., P.C. v Country Wide Ins. Co. (2013 NY Slip Op 50474(U))

City Dental Servs., P.C. v Country Wide Ins. Co. (2013 NY Slip Op 50474(U)) [*1]

City Dental Servs., P.C. v Country Wide Ins. Co.

2013 NY Slip Op 50474(U) [39 Misc 3d 131(A)]

Decided on March 29, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2013

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

PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-1787 K C.

City Dental Services, P.C. as Assignee of AURORA ARIAS, LEAH HARRISON, MARIO MERA, ERLINDA RODRIGUEZ, GLADIS RODRIGUEZ and IMRAN SHAW, Respondent, —
against
Country Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered April 27, 2011. The order denied the branches of defendant’s motion seeking leave to renew and reargue defendant’s opposition to plaintiff’s motion for summary judgment.

ORDERED that the appeal from so much of the order as denied the branch of defendant’s motion seeking leave to reargue its opposition to plaintiff’s motion for summary judgment is dismissed as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost two months after their stipulated due date, the Civil Court (Carolyn E. Wade, J.) rejected defendant’s papers and, by order entered June 11, 2010, granted plaintiff’s motion on default. Thereafter, defendant moved pursuant to CPLR 2221 (d) and (e), for leave to “renew and reargue” its [*2]opposition to plaintiff’s prior motion for summary judgment and, upon renewal and reargument, to deny plaintiff’s motion. Defendant’s motion also sought to vacate the June 11, 2010 order pursuant to CPLR 5015 (a) (1). By order entered April 27, 2011, the Civil Court (Johnny Lee Baynes, J.) denied the branches of defendant’s motion seeking leave to renew and reargue. The order did not address the branch of defendant’s motion seeking to vacate the June 11, 2010 order.

The appeal from so much of the order as denied the branch of defendant’s motion seeking leave to “reargue” must be dismissed, as no appeal lies from an order denying reargument (see Barrafato v Franzitta, 308 AD2d 468 [2003]).

The denial of the branch of defendant’s motion seeking leave to “renew” its “opposition” to plaintiff’s motion for summary judgment was proper since defendant had defaulted in opposing plaintiff’s motion and, thus, defendant’s remedy was to seek to vacate the default order. Finally, the branch of plaintiff’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the June 11, 2010 order was not addressed in the order appealed from and, therefore, remains pending and undecided (see Creese v Long Is. Light. Co., 98 AD3d 708, 711 [2012]; Katz v Katz, 68 AD2d 536 [1979]).

Accordingly, the order, insofar as reviewed, is affirmed.
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 29, 2013