Liberty Mut. Ins. Co. v Bayside Pain & Rehabilitation Medicine, P.C.

[*1] Liberty Mut. Ins. Co. v Bayside Pain & Rehabilitation Medicine, P.C. 2013 NY Slip Op 50906(U) Decided on May 23, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT:: LaSALLE, J.P., NICOLAI and IANNACCI, JJ
2011-2289 N C.

Liberty Mutual Insurance Company, Appellant,

against

Bayside Pain & Rehabilitation Medicine, P.C. as Assignee of DA CHENG WANG, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 12, 2011. The order granted defendant's motion to dismiss the complaint.

ORDERED that the appeal is dismissed and the order of the District Court dated July 12, 2011 granting defendant's motion to dismiss the complaint is vacated.

Plaintiff commenced this action in Supreme Court, Nassau County, pursuant to Insurance Law § 5106 (c), for de novo adjudication of defendant provider's assigned first-party no-fault benefits claim that had resulted in an arbitration award in favor of the provider. The ground for the de novo adjudication request was that the arbitration award exceeded $5,000. The complaint sought a determination that defendant was not entitled to recover assigned first-party no-fault benefits under plaintiff insurer's policy. Defendant moved to dismiss the complaint for, among other things, failure to state a cause of action, and plaintiff opposed the motion. While the motion was pending, the Supreme Court transferred the action to the District Court of Nassau County pursuant to CPLR 325 (d). By order dated July 12, 2011, the District Court granted defendant's motion and dismissed the complaint.

This action seeks, in essence, a declaratory judgment and not monetary damages. While we cannot review the propriety of the order of the Supreme Court transferring this declaratory judgment action to the District Court pursuant to CPLR 325 (d) (see e.g. Priel v Linarello, 7 Misc 3d 64 [App Term, 2d & 11th Jud Dists 2005], affd 44 AD3d 835 [2007]; Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16 [App Term, 2d, 11th & 13th Jud Dists 2010]), it is, nevertheless, not within the subject matter jurisdiction of the District Court to adjudicate this particular type of declaratory judgment action (see CPLR 3001; cf. UDCA 212-a [conferring subject matter jurisdiction on the District Court to render a declaratory judgment with respect to certain actions commenced by a party aggrieved by an arbitration award issued pursuant to the New York State Fee Dispute Resolution Program]). "The act of transferring [the action] from Supreme Court to [District Court] did not automatically confer the former's subject matter jurisdiction upon the latter" (Priel v Linarello, 7 Misc 3d at 66). Thus, as the District Court [*2]lacked subject matter jurisdiction, its order is a nullity (see Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16; Briscoe v White, 8 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2004]).

Accordingly, the appeal is dismissed and the District Court's order dated July 12, 2011 is vacated.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: May 23, 2013