SZ Med., P.C. v Country-Wide Ins. Co.

[*1] SZ Med., P.C. v Country-Wide Ins. Co. 2008 NY Slip Op 52223(U) [21 Misc 3d 136(A)] [21 Misc 3d 136(A)] Decided on October 30, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1645 K C.

SZ Medical, P.C., LIFE CHIROPRACTIC, P.C., JH CHIROPRACTIC, P.C. and NEW WAVE ORIENTAL ACUPUNCTURE, P.C. a/a/o OSMAN DELCID, Respondents,

against

Country-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), dated August 1, 2007. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's cross motion seeking to vacate a judgment entered in favor plaintiffs and the underlying order which, inter alia, granted plaintiffs' prior motion for summary judgment and, upon such vacatur, to dismiss the complaint.

Order, insofar as appealed from, affirmed without costs.

In or about April 2004, plaintiffs commenced this action to recover assigned first-party no-fault benefits. Plaintiffs subsequently moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In July 2005, the court below granted plaintiffs' motion and denied defendant's cross motion. In September 2005, a judgment was entered in favor of plaintiffs. Prior to the enforcement of the judgment, plaintiffs' attorney was suspended from practicing law in the State of New York (see Matter of Weinberg, 25 AD3d 157 [2005]). In January 2006, defendant moved for a stay of any attempt to [*2]enforce the judgment, pending the substitution of new counsel. Plaintiffs opposed the motion. In August 2006, the court below granted defendant's motion and stayed the action until each plaintiff served and filed a proper consent to change attorney. In February 2007, plaintiffs moved to lift the stay. Defendant opposed the motion and cross-moved to vacate the award of summary judgment and dismiss the complaint. By order dated August 1, 2007, the court below granted plaintiffs' motion and denied defendant's cross motion. The instant appeal by defendant ensued.

In its cross motion, defendant argued that the July 2005 order granting summary judgment to plaintiffs and the September 2005 judgment entered thereon, should be vacated because there was never consent to Mr. Weinberg's representation given by plaintiffs from the inception of the instant action. In the alternative, defendant sought a tolling of the accrual of interest. On appeal, defendant contends that the judgment and the order awarding judgment to plaintiffs should be vacated because defendant has a meritorious defense and reasonable excuse or, in the alternative, because plaintiffs failed to establish their prima facie entitlement to summary judgment. Indeed, defendant cites CPLR 5015 in support of its position, which refers to excusable defaults. However, the case at bar does not involve a default judgment, since the September 2005 judgment was entered after defendant submitted opposition papers to plaintiffs' motion for summary judgment, and cross-moved for summary judgment. We note that defendant has presented no other grounds under CPLR 5015 to warrant the vacatur of the judgment and order.

Moreover, defendant's contention regarding plaintiffs' prima facie entitlement to summary judgment is not properly before this court inasmuch as defendant is appealing from the August 2007 order entered after the September 2005 judgment. Since the order merely granted plaintiffs' motion to lift the stay and denied defendant's cross motion seeking to either vacate the judgment based upon plaintiffs' alleged failure to demonstrate that they retained plaintiffs' counsel or to toll the time during which interest accrued on the judgment, the merits of the summary judgment motions decided by the July 2005 order, upon which the judgment was entered, are not subject to review as part of this appeal. Defendant's remaining contentions have no merit. Furthermore, we note that Mr. Weinberg's suspension from the practice of law occurred after judgment was entered herein and he has since been reinstated to the bar, which action prompted plaintiffs' motion to lift the stay. Accordingly, the order, insofar as appealed from, is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008