November 12, 2013

Horizon Radiology, P.C. v Allstate Prop. & Cas. Ins. Co. (2013 NY Slip Op 51916(U))

Headnote

The main issue in this case was whether the default judgment should be vacated pursuant to CPLR 5015 (a) (1) in an action by a provider to recover assigned first-party no-fault benefits. The court considered the fact that defendant had subsequently been granted summary judgment dismissing the complaint, making the appeal academic. The court ultimately decided to dismiss the appeal in light of the subsequent order granting summary judgment, as it rendered the appeal unnecessary. The holding of the case was that the appeal must be dismissed as academic in light of the subsequent order granting defendant's unopposed motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Horizon Radiology, P.C. v Allstate Prop. & Cas. Ins. Co. (2013 NY Slip Op 51916(U))

Horizon Radiology, P.C. v Allstate Prop. & Cas. Ins. Co. (2013 NY Slip Op 51916(U)) [*1]

Horizon Radiology, P.C. v Allstate Prop. & Cas. Ins. Co.

2013 NY Slip Op 51916(U) [41 Misc 3d 138(A)]

Decided on November 12, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Horizon Radiology, P.C. as Assignee of RENALD DUME, Appellant, —
against
Allstate Property & Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered December 6, 2011. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1).

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1). By subsequent order entered November 19, 2012, the Civil Court granted defendant’s unopposed motion for summary judgment dismissing the complaint. In light of the November 19, 2012 order, this appeal must be dismissed as academic (see Livny v Rotella, 305 AD2d 377 [2003]; Cherico, Cherico & Assoc. v Lamanna, 21 Misc 3d 137[A], 2008 NY Slip Op 52292[U] [App Term, 9th & 10th Jud Dists 2008]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013