A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co.

[*1] A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. 2005 NY Slip Op 50115(U) Decided on February 2, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 2, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-292 K C

A.B. MEDICAL SERVICES PLLC LVOV ACUPUNCTURE P.C. SOMUN ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Vyacheslav Gafourov, Appellants,

against

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered November 18, 2003, which denied the motion by plaintiffs A.B. Medical Services PLLC, Lvov Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment.

Order unanimously reversed without costs and motion by plaintiffs A.B. Medical Services PLLC, Lvov Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment granted.

Appeal by plaintiff Square Synagogue Transportation Inc. unanimously dismissed.

Inasmuch as plaintiff Square Synagogue Transportation Inc. withdrew as a party to the motion in the court below, it was not aggrieved by the subject order and its appeal must be dismissed (see CPLR 5511).

CPLR 2219 (a) requires that an order deciding a motion recite the papers upon which the motion was decided (see Matter of Dondi, 63 NY2d 331, 339 [1984]). Although the parties' appellate briefs indicate that defendant may have served papers in opposition to the moving plaintiffs' motion for summary judgment, the order appealed from recites that the sole papers considered by the court were the moving papers. As a result, this court's review is limited to whether the moving papers demonstrated that as a matter of law a party was entitled to summary judgment.

The motion papers established a prima facie case in that the moving plaintiffs submitted [*2]statutory proof of claim forms to the defendant which set forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). It was then incumbent upon the defendant to demonstrate the existence of a material issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since it does not appear that the court received opposition papers from the defendant and as the papers before the court did not demonstrate the existence of a material issue of fact warranting the denial of the motion for summary judgment, the motion should have been granted as to the subject claims submitted by plaintiffs A.B. Medical Services PLLC, Lvov Acupuncture P.C., and Somun Acupuncture P.C. (see St. Luke's Roosevelt Hosp. v American Tr. Ins. Co., 1 AD3d 498 [2003]).

We note that if, in fact, defendant served and filed opposing papers, defendant, if it be so advised, may seek appropriate relief in the court below.

In light of the foregoing, we do not reach any other issues.
Decision Date: February 02, 2005