A.B. Med. Servs., PLLC v Travelers Indem. Co.

[*1] A.B. Med. Servs., PLLC v Travelers Indem. Co. 2009 NY Slip Op 52515(U) [25 Misc 3d 143(A)] Decided on December 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-554 N C.

A.B. Medical Services, PLLC a/a/o STEPHANIE LOPEZ, Appellant, -and- DANIEL KIM'S ACUPUNCTURE, P.C. and D.A.V. CHIROPRACTIC, P.C. a/a/o STEPHANIE LOPEZ, Plaintiffs,

against

Travelers Indemnity Company, Respondent.

Appeals from (1) an order of the District Court of Nassau County, Third District (David Goodsell, J.), entered June 16, 2008, deemed from an order denominated a "second amended decision" entered June 18, 2008 (see CPLR 5520 [c]), and (2) an order of the same court entered November 26, 2008. The order entered June 18, 2008, insofar as appealed from as limited by the brief, denied without prejudice plaintiff A.B. Medical Services, PLLC's motion for summary judgment and, sua sponte, stayed the action with respect to said plaintiff. The order entered November 26, 2008 denied plaintiff A.B. Medical Services, PLLC's motion for leave to reargue and/or renew the prior motion.

ORDERED that, on the court's own motion, the notice of appeal from so much of the order entered June 18, 2008 as, sua sponte, stayed the action, is treated as an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see UDCA 1702 [c]); and it is further, [*2]

ORDERED that the order entered June 18, 2008, insofar as appealed from, is reversed without costs, the provisions thereof which denied without prejudice plaintiff A.B. Medical Services, PLLC motion for summary judgment and, sua sponte, stayed the action with respect to plaintiff A. B. Medical Services, PLLC are stricken, and the matter is remitted to the District Court for a determination on the merits of plaintiff A. B. Medical Services, PLLC's motion for summary judgment; and it is further,

ORDERED that the appeal from the order entered November 26, 2008 is dismissed.

For the reasons stated in A.B. Med. Servs., PLLC a/a/o Beauliere v Travelers Indem. Co. (___ Misc 3d ___, 2009 NY Slip Op _____ [Appeal No. 2009-549 N C], decided herewith), the appeal from the order entered November 26, 2008 is dismissed, the order entered June 18, 2008, insofar as appealed from, is reversed, and the matter is remitted to the District Court for further proceedings.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 09, 2009