Astoria Quality Med. Supply v MVAIC

[*1] Astoria Quality Med. Supply v MVAIC 2007 NY Slip Op 52275(U) [17 Misc 3d 135(A)] Decided on November 20, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-789 K C.

Astoria Quality Medical Supply a/a/o Collado Eladio, Munoz Carmen, Jimenez Sacheverell, Rivera Martha, Pagoada Carlos and Drozdova Yulia, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered March 2, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment upon its claim pertaining to assignor Pagoada Carlos and granted defendant's cross motion to the extent of severing the actions and awarding defendant partial summary judgment dismissing plaintiff's claim pertaining to assignor Collado Eladio.

Appeal from so much of the order as granted defendant's cross motion for severance dismissed.

Order, insofar as reviewed, modified by providing that defendant's cross motion for summary judgment upon the claim pertaining to assignor Collado Eladio is denied; as so modified, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits as assignee of six individuals each of whom were injured in separate automobile accidents. After plaintiff moved for summary judgment, defendant cross-moved for summary judgment or, in the alternative, for severance. The court denied plaintiff's motion, granted defendant's cross motion to the extent of severing the actions and awarding defendant summary judgment upon the claim pertaining to assignor Collado Eladio.

Plaintiff concedes that its moving papers were insufficient to establish a prima facie case, but asserts that, upon a search of the record, it was nevertheless entitled to summary judgment on the claim pertaining to assignor Pagoada Carlos. Contrary to plaintiff's contention, the fact that the motion court did not search the record was not an improvident exercise of its discretion. On [*2]appeal, we decline plaintiff's request to search the record and award it summary judgment upon said claim (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Although the court dismissed the cause of action pertaining to Collado Eladio due to a failure to comply with Insurance Law § 5208, this was error. The record does not support a finding that plaintiff, as assignee of Collado Eladio, failed to comply with a condition precedent to the right to apply for payment from defendant (see Insurance Law § 5208 [a]). Accordingly, the branch of defendant's cross motion which sought summary judgment dismissing the cause of action seeking to recover no-fault benefits assigned to plaintiff by Collado Eladio should have been denied.

While plaintiff also appeals from the branch of the order which granted defendant's cross motion for severance, because plaintiff failed to submit opposition to defendant's cross motion, this branch of the order was entered on default and no appeal lies therefrom by plaintiff, the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]; Richmond Radiology, P.C. v State Farm Ins. Co., 15 Misc 3d 142[A], 2007 NY Slip Op 51074[U] [App Term, 2d & 11th Jud Dists]; Ava Acupuncture P.C. v Greyhound Lines, Inc., 14 Misc 3d 141[A], 2007 NY Slip Op
50356[U] [App Term, 2d & 11th Jud Dists]). As a result, the appeal from this branch of the order is dismissed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 20, 2007