Opinion
2014-2036 K C
11-17-2017
K.O. Medical, P.C., as Assignee of Leitzsey Alexander, Respondent, v. Mercury Casualty Company, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.
PRESENT: :
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant.
Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014, deemed from a judgment of the same court entered August 22, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the July 7, 2014 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $1,983.39.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 7, 2014 as granted plaintiff's cross motion for summary judgment is vacated, plaintiff's cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein.
Plaintiff commenced this action on April 12, 2013 to recover assigned first-party no-fault benefits. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 7, 2014, the Civil Court denied defendant's motion, finding that defendant had failed to establish the assignor's nonappearances at the EUOs, and granted plaintiff's cross motion. A judgment was subsequently entered on August 22, 2014, awarding plaintiff the principal sum of $1,983.39. Defendant's appeal from the July 7, 2014 order is deemed to be from the judgment (see CPLR 5512 [a]).
On appeal to this court, defendant has annexed to its reply brief a December 4, 2014 short-form order of the Supreme Court, Bronx County, in a declaratory judgment action that was commenced in October 2014 and asks this court to take judicial notice of that order, in which the Supreme Court granted on default a judgment declaring that plaintiff herein and its assignor, among others, are not entitled to no-fault coverage for the same accident as is at issue in the case at bar.
For the reasons stated in K.O. Med., P.C., as Assignee of Brutus Christopher v Mercury Cas. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2021 K C], decided herewith), we reverse the Civil Court's judgment, vacate so much of the Civil Court's order entered July 7, 2014 as granted plaintiff's cross motion for summary judgment and deny the cross motion, and, upon taking judicial notice of the Supreme Court's superseding order entered October 17, 2016 pursuant to the December 4, 2014 short-form order, granting defendant's motion for the entry of a default judgment and declaring that plaintiff herein and its assignor are not entitled to no-fault benefits arising out of the accident at issue, award summary judgment dismissing the complaint to defendant pursuant to CPLR 3212 (b). In view of this determination, we do not review so much of the Civil Court's order as denied defendant's motion for summary judgment dismissing the complaint.
ELLIOT, J.P., PESCE and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 17, 2017