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Acupuncture Works, P.C. As Assignee of Jacqueline Roman Garcia v. Interboro Ins. Co

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


December 23, 2011

ACUPUNCTURE WORKS, P.C. AS ASSIGNEE OF JACQUELINE ROMAN GARCIA,
RESPONDENT,
v.
INTERBORO INS. CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010, deemed from a judgment of the same court entered April 26, 2010 (see CPLR 5501 [c]).

Acupuncture Works, P.C. v Interboro Ins. Co.

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The judgment, entered pursuant to the February 5, 2010 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $3,455.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant failed to submit written opposition, and the Civil Court, by order entered February 5, 2010, granted plaintiff's motion. Thereafter, defendant moved to vacate the February 5, 2010 order, which motion the court denied, by order dated May 19, 2010, finding that "[t]here was no default in this case." Defendant appeals from the February 5, 2010 order, which appeal is deemed to be from the subsequently entered judgment (see CPLR 5501 [c]).

"Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion" (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]; see also Astoria Wellness Med., P.C. v State Farm Mut. Auto. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52008[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, the appeal from the judgment entered pursuant to the default order must be dismissed.

We note that defendant's remedy, if it be so advised, is to move to reargue the May 19, 2010 order or to file a notice of appeal therefrom.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: December 23, 2011

20111223

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