October 8, 2008

Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52014(U))

Headnote

The court considered the appeal from an order of the Civil Court of New York granting plaintiff Devonshire Surgical Facility summary judgment in the amount of $3,000. The main issue decided was whether the notice of appeal from the order was filed within the required 30 days of service, and whether the plaintiff had established a prima facie case for entitlement to first party no-fault benefits. The holding of the court was that the appeal was dismissed as untimely, as the notice of appeal was not filed within the required 30 days of service. Additionally, the court stated that if the appeal had been properly before them, they would have affirmed the decision, as plaintiff Devonshire had established a prima facie case for entitlement to first party no-fault benefits and the defendant failed to raise a triable issue to defeat summary judgment.

Reported in New York Official Reports at Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52014(U))

Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52014(U)) [*1]

Devonshire Surgical Facility v Nationwide Mut. Ins. Co.

2008 NY Slip Op 52014(U) [21 Misc 3d 130(A)]

Decided on October 8, 2008

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., SCHOENFELD, HEITLER, JJ
570360/07.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Jonathan Romero, Plaintiffs-Respondents, – –
against
Nationwide Mutual Insurance Company, Defendant-Appellant.

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated January 24, 2006, as granted plaintiff Devonshire Surgical Facility summary judgment in the principal sum of $3,000.

Per Curiam.

Appeal from order (Barbara Jaffe, J.), dated January 24, 2006, dismissed, without costs.

In view of plaintiffs’ unrefuted showing that the notice of appeal from the January 24, 2006 order was not filed within 30 days of the service of the order with notice of entry, it was untimely and the appeal must therefore be dismissed (see CPLR 5513[a]; Steinhardt Group, Inc. v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]). Were the appeal properly before us, we would affirm. Plaintiff Devonshire established prima case its entitlement to first party no-fault benefits and defendant failed to raise a triable issue to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 08, 2008