October 12, 2011

S.M. LAC, LLC v Nationwide Mut. Ins. Co. (2011 NY Slip Op 51857(U))

Headnote

The court considered the fact that the plaintiff appealed from an order granting the defendant's unopposed motion for summary judgment dismissing the complaint in an action to recover assigned first-party no-fault benefits. The plaintiff's attempt to submit opposition to the motion was rejected as untimely, so the court only considered the moving papers in making its decision. The main issue decided was whether the judgment entered pursuant to the order should be considered as having been entered on default, and therefore not subject to appeal by the defaulting party. The holding of the case was that the judgment entered on default was not subject to appeal, and therefore the appeal was dismissed.

Reported in New York Official Reports at S.M. LAC, LLC v Nationwide Mut. Ins. Co. (2011 NY Slip Op 51857(U))

S.M. LAC, LLC v Nationwide Mut. Ins. Co. (2011 NY Slip Op 51857(U)) [*1]

S.M. LAC, LLP v Nationwide Mut. Ins. Co.

2011 NY Slip Op 51857(U) [33 Misc 3d 129(A)]

Decided on October 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-1091 Q C.

S.M. LAC, LLP as Assignee of ANNA RIVERA, Appellant,
against
Nationwide Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 16, 2010, deemed from a judgment of the same court entered April 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 16, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

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 defendant’s unopposed motion for summary
judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although plaintiff asserts that it attempted to submit opposition to defendant’s motion, it acknowledges that the Civil Court rejected the papers as untimely. Thus, the order deciding the motion recites that the court considered only the moving papers (see CPLR 2219 [a]). In this posture, the judgment entered pursuant to the order 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]; Millennium Med. Instruments v MVAIC, 27 Misc 3d 127[A], 2010 NY Slip Op 50583[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 2011