October 1, 2021

Accelerated DME Recovery, Inc. v Travelers Ins. (2021 NY Slip Op 50955(U))

Headnote

The relevant facts considered by the court in this case included an action to recover assigned first-party no-fault benefits and a direction from the Civil Court for defendant to establish its fee schedule defense. The main issue decided in this case was the appeal from a "decision and order" of the Civil Court, which awarded the plaintiff the sum of $164.01. The holding of the court was that the appeal was dismissed, as the paper in question was not appealable as of right and did not decide a motion made upon notice. Additionally, the court declined to grant leave to appeal and stated that no appeal lies from a decision, leading to the dismissal of the appeal.

Reported in New York Official Reports at Accelerated DME Recovery, Inc. v Travelers Ins. (2021 NY Slip Op 50955(U))

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

Accelerated DME Recovery, Inc., as Assignee of Margaret Galderisi, Respondent,
against
Travelers Ins., Appellant.

Law Offices of Tina Newsome-Lee (Michael L. Rappaport of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from a decision and order (one paper) of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered March 12, 2020. The decision and order awarded plaintiff the sum of $164.01.

ORDERED that the appeal is dismissed.

In this action to recover assigned first-party no-fault benefits, the Civil Court (Odessa Kennedy, J.), by order dated November 16, 2017, directed, “The sole issue for trial is for [defendant] to establish its fee schedule defense.” In lieu of a trial, the parties submitted memoranda, and no testimony was taken. Defendant appeals from a “decision and order” of the Civil Court (Carolyn Walker-Diallo, J.), which was entered on March 12, 2020 and awarded plaintiff the sum of $164.01. No judgment has been entered.

To the extent that the March 12, 2020 “decision and order” constitutes an “order,” in that it appears that the parties requested a “Decision ordering” relief, the paper is not appealable as of right because it did not decide a motion made upon notice (see CCA 1702 [a] [2]; CPLR 2211; Mautner-Glick Corp. v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52320[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and we decline to grant leave to appeal. To the extent that the March 12, 2020 “decision and order” constitutes a decision, no appeal lies from a decision (see Schicchi v J.A. [*2]Green Constr. Corp., 100 AD2d 509 [1984]; AR Med. Rehabilitation, P.C. v MVAIC, 65 Misc 3d 138[A], 2019 NY Slip Op 51683[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 1, 2021