Opinion
2018-983 K C
12-06-2019
QUALITY HEALTH SUPPLY CORP., as Assignee of Evertz, Shea, Respondent, v. AMICA MUTUAL INS. CO., Appellant.
Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the grounds that it never received the claims at issue and that the coverage limits available under the insurance policy had already been exhausted. Plaintiff cross-moved for summary judgment. By order entered January 11, 2018, the Civil Court denied both the branch of defendant's motion seeking summary judgment on the ground that defendant had never received the claims at issue, and plaintiff's cross motion, stating that there was an issue of fact with respect to defendant's defense that it had not received the claims at issue.
Defendant's sole argument on appeal is that the Civil Court erred in failing to decide the branch of defendant's motion which sought summary judgment dismissing the complaint on the ground that the coverage limits available under the subject insurance policy had already been exhausted. However, no appeal lies from an order or portion thereof which fails to determine a motion or branch thereof (see Baez v. First Liberty Ins. Corp. , 95 AD3d 1250 [2012] ). Thus, the branch of defendant's motion which was not addressed by the Civil Court remains pending and undecided (see Fanelli v. J.C. Millbank Constr. Co., Inc. , 91 AD3d 703 [2012] ; Katz v. Katz , 68 AD2d 536, 542-543 [1979] ).
Accordingly, the appeal is dismissed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.