August 8, 2014

N.S. Acupuncture Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51258(U))

Headnote

The main issues in this case relate to a provider seeking recovery of assigned first-party no-fault benefits. The court considered the denial of the plaintiff's motion for entry of a default judgment and the grant of the defendant's unopposed cross motion to vacate a prior order of the court, which had granted the plaintiff's motion for summary judgment on default. The court dismissed the portion of the appeal that was taken from the grant of the defendant's cross motion, as the plaintiff did not oppose it. The court affirmed the remainder of the order, as the vacatur of the prior order meant that the plaintiff's motion for the entry of a default judgment was properly denied. The holding of the case was that the denial of the plaintiff's motion for a default judgment was proper due to the vacatur of the prior order granting summary judgment on default.

Reported in New York Official Reports at N.S. Acupuncture Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51258(U))

N.S. Acupuncture Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51258(U)) [*1]

N.S. Acupuncture Servs., P.C. v Allstate Ins. Co.

2014 NY Slip Op 51258(U) [44 Misc 3d 138(A)]

Decided on August 8, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-356 Q C

N.S. Acupuncture Services, P.C. as Assignee of LYUDMILA DRAKH, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered September 7, 2011. The order denied plaintiff’s motion for entry of a default judgment and granted defendant’s unopposed cross motion to, among other things, vacate a prior order of the same court (Genine D. Edwards, J.) entered December 14, 2010, which had granted, on default, plaintiff’s motion for summary judgment, and, implicitly, upon such vacatur, to deny plaintiff’s motion for summary judgment.

ORDERED that so much of the appeal as was taken from the portion of the order that granted defendant’s unopposed cross motion is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Rudolph E. Greco, Jr., J.) entered September 7, 2011, which denied plaintiff’s motion for entry of a default judgment and granted defendant’s cross motion to, among other things, vacate a prior order of the same court (Genine D. Edwards, J.) entered December 14, 2010, which had granted plaintiff’s motion for summary judgment on default, and, implicitly, upon such vacatur, to deny plaintiff’s motion for summary judgment. So much of the appeal as was taken from the portion of the order that granted defendant’s cross motion is dismissed, as plaintiff did not oppose defendant’s cross motion, and no appeal lies from an order which was entered upon the default of the appealing party (see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674 [2000]; Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588 [1986]). The remainder of the order is affirmed, as, in light of the vacatur of the order entered December 14, 2010, plaintiff’s motion for the entry of a default judgment pursuant to that order was properly denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: August 08, 2014