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

[*1] Fortune Med., P.C. v Country-Wide Ins. Co. 2009 NY Slip Op 51932(U) [24 Misc 3d 145(A)] Decided on September 8, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1135 Q C.

Fortune Medical, P.C. as assignee of VARELO GONZALO, Respondent,

against

Country-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated April 24, 2007. The order, insofar as appealed from as limited by the brief, granted so much of plaintiff's motion to enter judgment in plaintiff's favor as sought to include in the judgment an award of attorney's fees in the total sum of $4,490.37.

Appeal dismissed.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action on July 12, 2007 (see Matter of Aho, 39 NY2d 241, 248 [1976]; Anderson v Anderson, 50 AD3d 610 [2008]; Woodhaven Assoc., Inc. v Woodhaven Blvd. Rest., Inc., 46 AD3d 679 [2007]).

We note that the judgment entered pursuant to the April 24, 2007 order only awarded plaintiff the sum of $3,323.11 as attorney's fees, which does not accurately reflect the order upon which the judgment is based. We further note that the attorney's fees issue presented herein appears to have been addressed by the Court of Appeals in the case of LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), which case was decided after the instant appeal was perfected.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 08, 2009