Opinion
Motion No. 2023-00080 KC
10-03-2024
Arguelles, M.D., P.C., as Assignee of Edwin, Jerome, Appellant, v. AIG National Insurance Co., Respondent
Unpublished Opinion
MOTION DECISION
WAVNY TOUSSAINT, P.J. CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ.
DECISION & ORDER ON MOTION
Motion by appellant to vacate an order of this court dated June 20, 2023, which dismissed an appeal from an order of the Civil Court of the City of New York, Kings County, dated December 9, 2021.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that, on the court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [c]); and it is further, ORDERED that the motion is granted, the order dated June 20, 2023 is vacated, and the appeal shall be perfected on or before January 8, 2025; and it is further, ORDERED that in the event the appeal is not perfected by January 8, 2025, the court, on its own motion, may dismiss the appeal, or respondent may move, on three days' notice, to dismiss the appeal, and may serve such application upon appellant in person.
The order appealed from granted an oral motion, made by defendant on December 1, 2021, to dismiss the complaint based upon CPLR 213. While no appeal as of right lies from the order, which did not decide a motion made by defendant on notice (see CCA 1702 [a] [2]; Arroyo v City of New York, 185 A.D.2d 829 [1992]), we deem the notice of appeal to be an application for leave to appeal and grant the application (see CCA 1702 [c]).