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Woodward Medical Rehabilitation, P.C. As Assignee of Edwin Pagan, Respondent v. State Farm Fire and Casualty Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 28, 2011

WOODWARD MEDICAL REHABILITATION, P.C. AS ASSIGNEE OF EDWIN PAGAN, RESPONDENT, --
v.
STATE FARM FIRE AND CASUALTY CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered June 12, 2009.

Woodward Med. Rehabilitation, P.C. v State Farm Fire & Cas. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2011

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from as limited by the brief, denied defendant's amended motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, by notice of motion dated December 28, 2007, moved for summary judgment dismissing the complaint. The return date of the motion was adjourned several times and ultimately scheduled for June 12, 2009. In the interim, by notice of motion dated July 25, 2008, defendant had made an amended motion for summary judgment, returnable January 9, 2009, which was adjourned to be heard on June 12, 2009. Nowhere in the papers in support of defendant's amended motion did defendant set forth why it concluded that the amended motion was necessary, nor did defendant seek to withdraw the original motion. On the return date, the Civil Court denied both the original motion as defective and the amended motion as having been made "more than one year after the original motion without leave of court." Defendant's sole argument on appeal is that the Civil Court improperly refused to consider its amended motion.

"A party who concludes that a motion is defective or insufficient should apply for and obtain leave to withdraw or amend it" (60 CJS, Motions and Orders § 41; see generally Hoover v Rochester Print. Co., 2 App Div 11 [1896]). As the record in this case does not indicate that defendant either sought leave to withdraw the original motion or to amend it, and as defendant did not set forth any reason why an amended motion was necessary, the Civil Court did not improvidently exercise its discretion in refusing to entertain the amended motion. Accordingly the order, insofar as appealed from, is affirmed.

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

Decision Date: January 28, 2011

20110128

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