Opinion
No. 2010–2548 N C.
2012-02-9
A.B. MEDICAL SERVICES, PLLC, D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C. as Assignees of Alexander Kryukov, Appellants, v. THE TRAVELERS INDEMNITY COMPANY, Respondent.
Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated October 7, 2009. The order, insofar as appealed from as limited by the brief, sua sponte, among other things, dismissed plaintiffs' complaint without prejudice.
ORDERED that the appeal is dismissed.
In this action by three providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on various substantive grounds and plaintiffs cross-moved for partial summary judgment. The District Court did not address the merits of the motions. Rather, it sua sponte, among other things, dismissed plaintiffs' complaint without prejudice to plaintiffs filing an amended complaint within 30 days of the order.
There is no appeal as of right from an order entered sua sponte ( see Sholes v. Meagher, 100 N.Y.2d 333 [2003];Northside Studios v. Treccagnoli, 262 A.D.2d 469 [1999];Village of Savona v. Soles, 84 A.D.2d 683 [1981] ), and leave to appeal has not been granted. We note, however, that plaintiffs could have properly moved to vacate the order and appealed as of right had that motion been denied ( seeUDCA 1702[a][3]; CPLR 2221; Sholes, 100 N.Y.2d at 335;Village of Savona, 84 A.D.2d at 684), which they failed to do. Accordingly, plaintiffs' appeal is dismissed.