English Rd. Pediatrics & Adolescent Medicine, LLC v Gellin

English Rd. Pediatrics & Adolescent Medicine, LLC v Gellin 2021 NY Slip Op 05231 Decided on October 1, 2021 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 1, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
780 CA 20-01631

[*1]ENGLISH ROAD PEDIATRICS & ADOLESCENT MEDICINE, LLC, PLAINTIFF-APPELLANT,

v

CAREN ELIZABETH GELLIN, M.D., DEFENDANT-RESPONDENT.

HODGSON RUSS LLP, BUFFALO (RYAN K. CUMMINGS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (AMBER E. STORR OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (J. Scott Odorisi, J.), entered June 16, 2020. The order and judgment, among other things, granted that part of defendant's cross motion seeking summary judgment on her counterclaim for declaratory judgment.

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by granting judgment in favor of defendant as follows:

It is ADJUDGED and DECLARED that defendant is the sole and exclusive owner of the cash consideration paid to her as a result of the demutualization and conversion of Medical Liability Mutual Insurance Company,

and as modified the order and judgment is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration of the rights and obligations of the parties with respect to demutualization proceeds issued by Medical Liability Mutual Insurance Company to defendant when it converted from a mutual insurance company to a stock insurance company. We conclude that, for reasons stated in its decision, Supreme Court properly denied plaintiff's motion for summary judgment on the complaint and granted that part of defendant's cross motion seeking summary judgment on her counterclaim. The court erred, however, in failing to declare the rights of the parties, and we therefore modify the order and judgment by making the requisite declaration (see Maurizzio v Lumbermens Mut.

Cas. Co. , 73 NY2d 951, 954 [1989]).

Entered: October 1, 2021

Ann Dillon Flynn

Clerk of the Court