December 31, 2008

Connely v Progressive Casualty Insurance Co. (2008 NY Slip Op 52589(U))

https://www.beynensonlaw.com/case-law/connely-v-progressive-casualty-insurance-co-2008-ny-slip-op-52589u/

Court: Appellate Term, Second Department
Decided: December 31, 2008
Citation: 2008 NY Slip Op 52589(U) · 22 Misc 3d 126(A)
Posture: Other motion
Issues: Discovery and procedure

Cite as

Connely v Progressive Casualty Insurance Co., 22 Misc 3d 126(A), 2008 NY Slip Op 52589(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008)

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.

A party that obtains all requested relief cannot appeal merely because it disagrees with the order's findings or rationale. In an assigned no-fault action, the insurer sought a protective order striking the provider's notice to admit. Civil Court denied the motion, giving the provider the full relief sought in opposition. The provider nevertheless appealed to remove language expressing the court's views on notices to admit in no-fault actions. Following Parochial Bus Sys. v Board of Educ. of City of N.Y., the Appellate Term, Second Department, dismissed the provider's appeal because disagreement with the favorable order's reasoning supplied no grounds for appeal.

Reported in New York Official Reports at Connely v Progressive Casualty Insurance Co. (2008 NY Slip Op 52589(U))

[*1]

Connely v Progressive Casualty Insurance Co.

2008 NY Slip Op 52589(U) [22 Misc 3d 126(A)]

Decided on December 31, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on December 31, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-28 K C.

Peter Connely, D.C. a/a/o MOHAMMAD KIFAYEH, Appellant,

against

Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 28, 2007. The order denied defendant’s motion for a protective order striking plaintiff’s notice to admit.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying defendant’s motion for a protective order striking plaintiff’s notice to admit. Specifically, plaintiff seeks to strike from the order language in which the Civil Court set forth its opinion as to the use of a notice to admit in a no-fault action (see generally Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007] [“to the extent that defendant may have admitted, pursuant to CPLR 3123, the genuineness of the claim denial form, it did not thereby concede the admissibility of the provider’s claim form as a business record . . . Similarly, even had defendant admitted, pursuant to CPLR 3123, the genuineness of the provider’s claim form which it received . . . [t]he admission would serve only to acknowledge that this was the claim form that it received”]).

Here, defendant sought a protective order and the court denied its motion, affording plaintiff the full relief sought in opposition (see Atlantic Hudson Realty v Rhodes, 271 AD2d 558 [2000]). “[W]here the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal. This is so even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor, or where he failed to prevail on all the issues that had been raised” (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [internal citations omitted]). Accordingly, the appeal is dismissed. [*2]

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008

Cited in this decision

Bajaj v General Assur. (2007 NY Slip Op 27487)An insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.

Similar decisions

Connely v Allstate Ins. Co. (2008 NY Slip Op 51874(U))The provider was entitled to compel the insurer's deposition under CPLR 3101 (a) in its action for assigned no-fault benefits.
Bedford Park Med. Practice, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50494(U))A provider cannot cure deficient summary judgment proof by first supplying admissible evidence in reply papers.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51471(U))A notice to admit may seek genuineness of denial forms and facts already acknowledged in them, but may not establish disputed ultimate facts.
AKS Med., P.C. v Progressive Ins. Co. (2009 NY Slip Op 51494(U))The provider failed to prove claim submission because its billing-manager affidavit contradicted the post office ledger on which it relied.