Actual Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y.

[*1] Actual Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. 2020 NY Slip Op 50189(U) Decided on January 31, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2019-121 K C

Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez, Respondent,

against

Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 12, 2018. The order denied defendant's motion to consolidate four other actions pending before that court with the instant action and, upon consolidation, to compel the Clerk of the Civil Court to, in effect, deem the notice of appeal filed in the instant action to be a notice of appeal of the consolidated action and to accept an undertaking in the consolidated action.

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. After issue was joined, defendant moved for an order, pursuant to CPLR 602 (a), to consolidate the present action with four other actions pending before the court and, upon consolidation, to, in effect, open its defaults in appearing at trial. By order entered May 8, 2018, the Civil Court denied the branch of defendant's motion seeking to, in effect, open its defaults and did not reach the branch seeking consolidation of the actions. Defendant has separately appealed from the May 8, 2018 order (see Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez v Global Liberty Ins. Co. of NY, ___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-1857 K C], decided herewith). On that appeal, defendant proffered an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings "that have been brought or may be brought by . . . Actual Chiropractic, P.C." seeking no-fault benefits as assignee of Ruben Rodriguez pertaining to the same accident and under the same claim number as those at bar are "permanently stayed." This court is dismissing that appeal on the ground that any determination therein would not, under the facts therein, have a direct effect upon the parties.

The instant appeal concerns a motion made by defendant in June 2018, pursuant to CPLR [*2]602 (a), to consolidate the present action with four other actions and, upon consolidation, "to have the Clerk of the Civil Court . . . County of Kings, compelled to deem the appeal [of the instant action] . . . to be an appeal of the within joined actions" and to accept an undertaking pertaining to all of the actions. Plaintiff opposed the motion. Defendant appeals from an order of the Civil Court entered December 12, 2018 denying defendant's motion.

In view of the dismissal of the appeal in Actual Chiropractic, P.C., as Assignee of Ruben Rodriguez v Global Liberty Ins. Co. of NY, ___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-1857 K C], decided herewith), this action is no longer a viable pending action with which to consolidate any other actions.

Accordingly, the appeal is dismissed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 31, 2020