Midborough Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co.

Full title: Midborough Acupuncture, P.C., as Assignee of Wilkin Garcia, Appellant, v…

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Mar 15, 2017

2017 N.Y. Slip Op. 68274 (N.Y. App. Term 2017)

Opinion

Motion No: 2010-00119 KC

03-15-2017

Midborough Acupuncture, P.C., as Assignee of Wilkin Garcia, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent.

MICHAEL L. PESCE, P.J.

THOMAS P. ALIOTTA

MARTIN M. SOLOMON, JJ.

DECISION & ORDER ON MOTION

Motion by respondent to dismiss an appeal from an order of the Civil Court of the City of New York, Kings County, entered August 20, 2009.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.

Contrary to appellant's assertion in opposition to respondent's motion, the provisions of the declaratory judgment entered in the Supreme Court, Nassau County, would appear to apply to the parties to this appeal. Nevertheless, the proper procedure is not a motion to dismiss the appeal as moot but rather for respondent to move for relief in the Civil Court based on the declaratory judgment, as the appeal would not be rendered moot unless and until respondent's res judicata claim is established in the Civil Court. The parties are cautioned that a frivolous appeal may subject the offending parties to sanctions (see Rules of the Chief Administrator of the Courts [22 NYCRR] part 130; Rules of the Appellate Terms, 2d Dept [22 NYCRR] § 730.3 [g]).

ENTER:

Paul Kenny

Chief Clerk