Quality Health Supply Corp. v Amica Mut. Ins. Co.

[*1] Quality Health Supply Corp. v Amica Mut. Ins. Co. 2019 NY Slip Op 51969(U) Decided on December 6, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-983 K C

Quality Health Supply Corp., as Assignee of Evertz, Shea, Respondent,

against

Amica Mutual Ins. Co., Appellant.

Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 11, 2018. The order, insofar as appealed from as limited by the brief, failed to decide the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that the coverage limits of the insurance policy had been exhausted.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the grounds that it never received the claims at issue and that the coverage limits available under the insurance policy had already been exhausted. Plaintiff cross-moved for summary judgment. By order entered January 11, 2018, the Civil Court denied both the branch of defendant's motion seeking summary judgment on the ground that defendant had never received the claims at issue, and plaintiff's cross motion, stating that there was an issue of fact with respect to defendant's defense that it had not received the claims at issue.

Defendant's sole argument on appeal is that the Civil Court erred in failing to decide the branch of defendant's motion which sought summary judgment dismissing the complaint on the ground that the coverage limits available under the subject insurance policy had already been [*2]exhausted. However, no appeal lies from an order or portion thereof which fails to determine a motion or branch thereof (see Baez v First Liberty Ins. Corp., 95 AD3d 1250 [2012]). Thus, the branch of defendant's motion which was not addressed by the Civil Court remains pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Katz v Katz, 68 AD2d 536, 542-543 [1979]).

Accordingly, the appeal is dismissed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019