July 10, 2008

Vinings Spinal Diagnostic v Progressive Cas. Ins. Co. (2008 NY Slip Op 51534(U))

Headnote

The main issue in this case was whether the plaintiff was required to provide the defendant with an authorization executed by its assignor in order to obtain discovery of the defendant's no-fault file, and whether the plaintiff was responsible for the costs of reproduction of said file. The court dismissed the appeal from the order, stating that no appeal as of right lies from an order which decides a motion that was not made on notice. The court clarified that a motion is made on notice when a notice of motion or an order to show cause is served, and since no notice of motion or order to show cause was served in this case, the appeal was dismissed. The decision was made by Rudolph, P.J., McCabe and Scheinkman, JJ., and the appeal was dismissed.

Reported in New York Official Reports at Vinings Spinal Diagnostic v Progressive Cas. Ins. Co. (2008 NY Slip Op 51534(U))

Vinings Spinal Diagnostic v Progressive Cas. Ins. Co. (2008 NY Slip Op 51534(U)) [*1]

Vinings Spinal Diagnostic v Progressive Cas. Ins. Co.

2008 NY Slip Op 51534(U) [20 Misc 3d 136(A)]

Decided on July 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
2007-582 N C.

Vinings Spinal Diagnostic as assignee of MIA ONORATO, Appellant,
against
Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated December 28, 2006. The order, insofar as appealed from as limited by the brief, directed plaintiff to provide defendant with an authorization executed by its assignor in order to obtain discovery of defendant’s no-fault file, and directed that plaintiff bear the costs of reproduction of said file (15 Misc 3d 270 [2006]).

Appeal dismissed.

The appeal from the order must be dismissed since no appeal as of right lies from an order which decides a motion which was not made on notice (UDCA 1702 [a] [2]; see Bottiglieri v Reilly, 15 Misc 3d 135[A], 2007 NY Slip Op 50750[U] [App Term, 9th & 10th Jud Dists 2007]; see also 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]). A motion is made on notice when a notice of motion or an order to show cause is served (CPLR 2211), and no notice of motion or order to show cause was served herein. Although, under appropriate circumstances, a court may deem a notice of appeal an application for leave to appeal and grant such leave (UDCA 1702 [c]; see e.g. Cervera v Bressler, 50 AD3d 837 [2008]; Vest v Vest, 50 AD3d 776 [2008]), we decline to do so in the instant case.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: July 10, 2008