November 30, 2011

Five Boro Psychological Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 52197(U))

Headnote

The main issue in this case was whether the court should dismiss the complaint filed by Five Boro Psychological Services, P.C. as the assignee of David Ran, in their action to recover assigned first-party no-fault benefits from Allstate Ins. Co. Defendant Allstate Ins. Co. moved to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion, and as the plaintiff submitted no papers in opposition to defendant's motion by the new return date, the order granting defendant's motion to dismiss the complaint was deemed to have been entered upon default. Therefore, the court held that plaintiff's appeal must be dismissed, as no appeal lies by the defaulting party.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 52197(U))

Five Boro Psychological Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 52197(U)) [*1]

Five Boro Psychological Servs., P.C. v Allstate Ins. Co.

2011 NY Slip Op 52197(U) [33 Misc 3d 141(A)]

Decided on November 30, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2010-1193 K C.

Five Boro Psychological Services, P.C. as Assignee of David Ran, Appellant,
against
Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered September 22, 2009. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant’s motion by the new return date, the order granting defendant’s motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: November 30, 2011