October 8, 2008

Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52015(U))

Headnote

The court considered the appeal from an order of the Civil Court of New York, dated January 24, 2006, which granted the plaintiff Devonshire Surgical Facility summary judgment in the amount of $3,000 and granted plaintiff Carnegie Hill Orthopedic Services partial summary judgment in the amount of $41,157.88. The court dismissed the appeal due to the untimeliness of the notice of appeal, as it was not filed within 30 days of the service of the order with notice of entry. If the appeal had been properly before the court, they would have affirmed the decision, as the plaintiffs had established their entitlement to first-party no-fault benefits and the defendant failed to raise a triable issue to defeat summary judgment. The holding of the court was that the appeal was dismissed, and if it had been properly before them, they would have affirmed the decision of the lower court.

Reported in New York Official Reports at Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52015(U))

Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52015(U)) [*1]

Devonshire Surgical Facility v Nationwide Mut. Ins. Co.

2008 NY Slip Op 52015(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This opinion is uncorrected and will not be published in the printed Official Reports.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
570389/07.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Jose Germosen,, 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, and granted plaintiff Carnegie Hill Orthopedic Services partial summary judgment in the principal sum of $41,157.88.

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. Plaintiffs established prima case their 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