March 31, 2010

Millennium Med. Instruments v MVAIC (2010 NY Slip Op 50583(U))

https://www.beynensonlaw.com/case-law/millennium-med-instruments-v-mvaic-2010-ny-slip-op-50583u/

Court
Appellate Term, Second Department
Decided
March 31, 2010
Citation
2010 NY Slip Op 50583(U) · 27 Misc 3d 127(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Defaults and vacatur
Cite as
Millennium Med. Instruments v MVAIC, 27 Misc 3d 127(A), 2010 NY Slip Op 50583(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 provider's appeal was dismissed because the incomplete record required treating the summary judgment order as entered on default. MVAIC had sought summary judgment on grounds including the assignor's failure to exhaust available insurance remedies. Although both parties acknowledged that opposition and reply papers had been submitted, neither appeared in the appellate record, and the order recited consideration only of the moving papers. The Appellate Term, Second Department, dismissed the appeal under CPLR 5511 because a defaulting party cannot appeal from an order entered on default.

Reported in New York Official Reports at Millennium Med. Instruments v MVAIC (2010 NY Slip Op 50583(U))

[*1]
Millennium Med. Instruments v MVAIC
2010 NY Slip Op 50583(U) [27 Misc 3d 127(A)]
Decided on March 31, 2010
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1540 K C.

Millennium Medical Instruments a/a/o EBONY BIRRMINGHAM, Appellant,

against

MVAIC, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered July 30, 2007. The order granted defendant’s motion for summary judgment.


ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment on the ground that, among other things, plaintiff’s assignor had failed to exhaust all available insurance remedies. Although, at oral argument before this court, the parties acknowledged that papers had been submitted in opposition to the motion for summary judgment and in reply, none of these papers appear in the record that is before this court, and the order appealed from recites that the Civil Court considered only the moving papers. In this posture, the order appealed from must be considered as having been entered on default, and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50262[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010

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