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

[*1] A.B. Med. Servs., PLLC v Travelers Indem. Co. 2012 NY Slip Op 50246(U) Decided on February 9, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-2548 N C. -x

A.B. Medical Services, PLLC, D.A.V. CHIROPRACTIC, P.C. and LVOV ACUPUNCTURE, P.C. as Assignees of ALEXANDER KRYUKOV, Appellants,

against

The Travelers Indemnity Company, Respondent. -x

Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated October 7, 2009. The order, insofar as appealed from as limited by the brief, sua sponte, among other things, dismissed plaintiffs' complaint without prejudice.

ORDERED that the appeal is dismissed.

In this action by three providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on various substantive grounds and plaintiffs cross-moved for partial summary judgment. The District Court did not address the merits of the motions. Rather, it sua sponte, among other things, dismissed plaintiffs' complaint without prejudice to plaintiffs filing an amended complaint within 30 days of the order.

There is no appeal as of right from an order entered sua sponte (see Sholes v Meagher, 100 NY2d 333 [2003]; Northside Studios v Treccagnoli, 262 AD2d 469 [1999]; Village of Savona v Soles, 84 AD2d 683 [1981]), and leave to appeal has not been granted. We note, [*2]however, that plaintiffs could have properly moved to vacate the order and appealed as of right had that motion been denied (see UDCA 1702 [a] [3]; CPLR 2221; Sholes, 100 NY2d at 335; Village of Savona, 84 AD2d at 684), which they failed to do. Accordingly, plaintiffs' appeal is dismissed. Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 09, 2012