Connely v Progressive Casualty Insurance Co.

[*1] Connely v Progressive Casualty Insurance Co. 2008 NY Slip Op 52589(U) [22 Misc 3d 126(A)] Decided on December 31, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on December 31, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-28 K C.

Peter Connely, D.C. a/a/o MOHAMMAD KIFAYEH, Appellant,

against

Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 28, 2007. The order denied defendant's motion for a protective order striking plaintiff's notice to admit.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying defendant's motion for a protective order striking plaintiff's notice to admit. Specifically, plaintiff seeks to strike from the order language in which the Civil Court set forth its opinion as to the use of a notice to admit in a no-fault action (see generally Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007] ["to the extent that defendant may have admitted, pursuant to CPLR 3123, the genuineness of the claim denial form, it did not thereby concede the admissibility of the provider's claim form as a business record . . . Similarly, even had defendant admitted, pursuant to CPLR 3123, the genuineness of the provider's claim form which it received . . . [t]he admission would serve only to acknowledge that this was the claim form that it received"]).

Here, defendant sought a protective order and the court denied its motion, affording plaintiff the full relief sought in opposition (see Atlantic Hudson Realty v Rhodes, 271 AD2d 558 [2000]). "[W]here the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal. This is so even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor, or where he failed to prevail on all the issues that had been raised" (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [internal citations omitted]). Accordingly, the appeal is dismissed. [*2]

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008