A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co.

[*1] A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. 2009 NY Slip Op 52636(U) [26 Misc 3d 128(A)] Decided on December 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
2008-2198 N C.

A.B. Medical Services, PLLC, D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C. a/a/o KIM OLEG, Appellants,

against

GEICO Casualty Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 22, 2008. The order, insofar as appealed from as limited by the brief, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

ORDERED that, on the court's own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC 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); and it is further,

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision thereof which stayed the action is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignor in 2002, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for relief pursuant to CPLR 3124 and CPLR 3126. Plaintiffs appeal, as limited by their brief, from the order of the District Court insofar as it, without determining the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC (A.B. Med.), sua sponte, stayed the action as to A.B. Med, so that said plaintiff "can make application to the appropriate court for the appointment of a receiver or liquidating trustee."

We note that no appeal lies as of right from a sua sponte order staying an action (see UDCA 1702 [a] [2]). However, we deem the notice of appeal to be an application
for leave to appeal and, for the reasons stated in A.B. Med. Servs., PLLC a/a/o
Beauliere v Travelers Ins. Co. ( Misc 3d , 2009 NY Slip Op 29510 [App Term, 9th & 10th Jud Dists 2009]), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. is granted, the order, insofar as appealed from, is reversed, said provision is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs' motion seeking summary judgment in favor of A.B. Med.

In remitting the matter for determination of the branch of plaintiffs' motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant's cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 23, 2009