Opinion
No. 2021-446 K C
11-18-2022
Jules Francois Parisien, M.D., as Assignee of Jean-Baptiste, Gerard, Respondent, v. MVAIC, Appellant.
Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Unpublished Opinion
MOTION DECISION
Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
Appeal from a decision and order (one paper) of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated July 1, 2021. The decision and order awarded plaintiff the sum of $547.24.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from a "decision and order" of the Civil Court, which was dated July 1, 2021 and awarded plaintiff the sum of $547.24. We note that the "decision and order" lists several facts as having been agreed to by the parties at a pretrial conference, but the record does not include a copy of a stipulation or a transcript of that conference. Furthermore, while trial memoranda were included in the printed record, there is nothing else in the record to indicate that a trial was held, suggesting that this case may have been decided solely on stipulated facts which were not provided to this court. Finally, no judgment has been entered.
To the extent that the July 1, 2021 "decision and order" constitutes an "order," the paper is not appealable as of right because it did not decide a motion made upon notice (see CCA 1702 [a] [2]; CPLR 2211; Accelerated DME Recovery, Inc. v Travelers Ins., 73 Misc.3d 131 [A], 2021 NY Slip Op 50955[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Mautner-Glick Corp. v Tunne, 38 Misc.3d 126 [A], 2012 NY Slip Op 52320[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc.3d 126 [A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and we decline to grant leave to appeal. To the extent that the July 1, 2021 "decision and order" constitutes a "decision," no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 A.D.2d 509 [1984]; Accelerated DME Recovery, Inc. v Travelers Ins., 2021 NY Slip Op 50955[U]; AR Med. Rehabilitation, P.C. v MVAIC, 65 Misc.3d 138 [A], 2019 NY Slip Op 51683[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the appeal is dismissed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.