November 6, 2020

Lenex Servs., Inc. v American Tr. Ins. Co. (2020 NY Slip Op 51330(U))

Headnote

The court considered the defendant's motion for summary judgment in an action by a provider to recover assigned first-party no-fault benefits. The motion sought to dismiss the complaint in relation to claims for services rendered to specific individuals. The Civil Court granted the defendant's motion, and the plaintiff did not submit any papers in opposition to the motion, nor were the substance of the plaintiff's arguments, if any, made at oral argument, included in the order. As a result, the Court of Appeals could not review the decision on direct appeal. The remedy for the plaintiff, if so advised, was to move in the Civil Court to vacate the order. Therefore, the appeal was dismissed.

Reported in New York Official Reports at Lenex Servs., Inc. v American Tr. Ins. Co. (2020 NY Slip Op 51330(U))

Lenex Servs., Inc. v American Tr. Ins. Co. (2020 NY Slip Op 51330(U)) [*1]

Lenex Servs., Inc. v American Tr. Ins. Co.

2020 NY Slip Op 51330(U) [69 Misc 3d 139(A)]

Decided on November 6, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1972 K C

Lenex Services, Inc., as Assignee of Love Olatunjiojo, Cathy Gaymon, Delia Morales, Tatiana Guerrero Alvarez, Tatevik Alexanyan, Antoinette Affoon and Oscar Collaguazo Salinas, Appellant,
against
American Transit Insurance Company, Respondent.

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Daniel J. Tucker (Daniel Sullivan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 7, 2018. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Love Olatunjiojo, Cathy Gaymon, Delia Morales, Antoinette Affoon, and Oscar Collaguazo Salinas.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. By order entered August 7, 2018, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Love Olatunjiojo, Cathy Gaymon, Delia Morales, Antoinette Affoon, and Oscar Collaguazo Salinas.

Plaintiff did not submit any papers in opposition to defendant’s motion giving rise to the August 7, 2018 order (see CPLR 2219 [a]; Matter of Dondi, 63 NY2d 331, 339 [1984]), and the order does not recite the substance of plaintiff’s arguments, if any, made at oral argument. In these circumstances, the order, insofar as appealed from, cannot be reviewed on direct appeal (see Benitez v Olson, 29 AD3d 503 [2006]; Viggiani v Grodotzke, 306 AD2d 273 [2003]; see also M & C Bros., Inc. v Torum, 75 AD3d 869 [2010]; cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695 [2014]). Plaintiff’s remedy, if it be so advised, is to move in the Civil Court to vacate the order.

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020