WJJ Acupuncture, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51731(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 19, 2007, deemed from a judgment entered July 2, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 19, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $4,267.13.

Judgment reversed without costs, so much of the order entered April 19, 2007 as granted plaintiff’s motion for summary judgment upon its claims pertaining to assignors Natasha Wright and Junior Ford vacated, said branches of plaintiff’s motion for summary judgment denied without prejudice, and matter remitted to the Civil Court for the calculation of statutory interest and attorney’s fees upon the $428.56 claim pertaining to assignor Steven Stryr.

Plaintiff commenced the instant action to recover first-party no-fault benefits assigned to it by Natasha Wright, Junior Ford and Steven Stryr. By order dated April 19, 2007, the Civil Court granted plaintiff’s motion for summary judgment, and this appeal ensued. The appeal is deemed to be from the judgment that was subsequently entered pursuant to the April 19, 2007 order (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, the subject order was not entered upon defendant’s default inasmuch as the CPLR 2219 (a) recitation states that the court considered defendant’s opposing papers (see CPLR 2219 [a]; Mitchell v Sebrew, 17 Misc 3d 137[A], 2007 NY Slip Op 52301[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50115[U] [App Term, 2d & 11th Jud Dists 2005]).

Defendant contends on appeal, as it did before the Civil Court, that plaintiff’s motion for [*2]summary judgment was made in violation of a previously ordered stay issued by the Supreme Court, Nassau County (Brennan, J.). Upon a review of the order issued by Justice Brennan, which was appended to defendant’s opposition papers, we find that the order barred plaintiff from moving for summary judgment upon plaintiff’s claims pertaining to assignors Natasha Wright and Junior Ford (see A.T. Med., P.C. v State Farm Ins. Co., 19 Misc 3d 138[A], 2008 NY Slip Op 50875[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, plaintiff’s motion for summary judgment is denied without prejudice with respect to these claims.

However, inasmuch as the stay is inapplicable to claims pertaining to assignor Steven Stryr, the stay did not bar the branch of plaintiff’s motion which sought summary judgment upon the $428.56 claim to recover assigned first-party no-fault benefits for services rendered to Stryr. As the sole argument raised on appeal by defendant concerns the stay issued by Justice Brennan, defendant failed to establish that plaintiff was not entitled to summary judgment upon the $428.56 claim pertaining to Stryr.

Accordingly, the judgment is reversed, so much of the order entered April 19, 2007 as granted plaintiff’s motion for summary judgment upon its claims pertaining to assignors Natasha Wright and Junior Ford is vacated, said branches of plaintiff’s motion for summary judgment are denied without prejudice, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees due on plaintiff’s claim for $428.56, pertaining to assignor Steven Stryr, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 31, 2009