December 2, 2015

Performance Plus Med., P.C. v Kemper Ins. Co. (2015 NY Slip Op 51777(U))

Headnote

The court considered an appeal from an order granting the defendant's motion to dismiss the complaint in an action by a provider to recover assigned first-party no-fault benefits. The main issue was whether the appeal from the order entered upon the default of the appealing party was allowed. The court held that as no appeal lies from an order entered upon the default of the appealing party, the appeal was dismissed. The decision was made by a unanimous decision of the judges.

Reported in New York Official Reports at Performance Plus Med., P.C. v Kemper Ins. Co. (2015 NY Slip Op 51777(U))

Performance Plus Med., P.C. v Kemper Ins. Co. (2015 NY Slip Op 51777(U)) [*1]

Performance Plus Med., P.C. v Kemper Ins. Co.

2015 NY Slip Op 51777(U) [49 Misc 3d 153(A)]

Decided on December 2, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2015

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

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-1537 Q C

Performance Plus Medical, P.C. as Assignee of Berquise Passe, Appellant,
against
Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 16, 2013. The order granted defendant’s unopposed motion to dismiss 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, on default, defendant’s motion to dismiss the complaint. As no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Reynolds v Haiduk, 120 AD3d 656 [2014]; HCA Equip. Fin., LLC v Mastrantone, 118 AD3d 850 [2014]), the appeal is dismissed (see Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588 [1986]).

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 02, 2015