October 8, 2008

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

https://www.beynensonlaw.com/case-law/devonshire-surgical-facility-v-nationwide-mut-ins-co-2008-ny-slip-op52015u/

Court
Appellate Term, First Department
Decided
October 8, 2008
Citation
2008 NY Slip Op 52015(U) · 21 Misc 3d 130(A)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
Other
Cite as
Devonshire Surgical Facility v Nationwide Mut. Ins. Co., 21 Misc 3d 130(A), 2008 NY Slip Op 52015(U) (App Term, 1st Dept 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.

The insurer's appeal was untimely because its notice of appeal was not filed within 30 days after service of the order with notice of entry. The Appellate Term, First Department, dismissed the appeal from the grants of summary judgment to one provider and partial summary judgment to another under CPLR 5513 (a). The providers' showing of untimeliness was unrefuted. The court added that, if the appeal were properly before it, it would affirm because the providers established entitlement to no-fault benefits and the insurer raised no triable issue.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

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