Opinion
No. 2012–356 Q C.
2014-08-8
N.S. ACUPUNCTURE SERVICES, P.C. as Assignee of Lyudmila Drakh, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered September 7, 2011. The order denied plaintiff's motion for entry of a default judgment and granted defendant's unopposed cross motion to, among other things, vacate a prior order of the same court (Genine D. Edwards, J.) entered December 14, 2010, which had granted, on default, plaintiff's motion for summary judgment, and, implicitly, upon such vacatur, to deny plaintiff's motion for summary judgment.
ORDERED that so much of the appeal as was taken from the portion of the order that granted defendant's unopposed cross motion is dismissed; and it is further,
ORDERED that the order, insofar as reviewed, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Rudolph E. Greco, Jr., J.) entered September 7, 2011, which denied plaintiff's motion for entry of a default judgment and granted defendant's cross motion to, among other things, vacate a prior order of the same court (Genine D. Edwards, J.) entered December 14, 2010, which had granted plaintiff's motion for summary judgment on default, and, implicitly, upon such vacatur, to deny plaintiff's motion for summary judgment. So much of the appeal as was taken from the portion of the order that granted defendant's cross motion is dismissed, as plaintiff did not oppose defendant's cross motion, and no appeal lies from an order which was entered upon the default of the appealing party ( see CPLR 5511; Sanchez v. Village of Ossining, 271 A.D.2d 674 [2000]; Lumbermen's Mut. Cas. Co. v. Fireman's Fund Am. Ins. Co., 117 A.D.2d 588 [1986] ). The remainder of the order is affirmed, as, in light of the vacatur of the order entered December 14, 2010, plaintiff's motion for the entry of a default judgment pursuant to that order was properly denied.