New Century Osteopathic v State Farm Fire & Cas. Ins. Co. (2008 NY Slip Op 52584(U))

New Century Osteopathic v State Farm Fire & Cas. Ins. Co.

2008 NY Slip Op 52584(U) [22 Misc 3d 126(A)]

Decided on December 31, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

New Century Osteopathic and GEORGE LIAKEAS, M.D. d/b/a MEDICAL PLAZA a/a/o NODIRA USMANOVA, Appellants,

against

State Farm Fire and Casualty Insurance Company, Respondent.

Appeal from an order and decision (one paper) of the Civil Court of the City of New York, Kings County (Lila Gold, J.), dated May 16, 2007. The order and decision denied plaintiffs' oral motion at trial for a finding that a prior order, which provided that plaintiffs' motion for summary judgment made a prima facie showing, dispensed with plaintiffs' need to establish a prima facie case at trial, and dismissed the complaint upon plaintiffs' failure to present evidence following the denial of their motion.

When the instant action to recover assigned first-party no-fault benefits was called for trial, plaintiffs orally moved for a determination that a prior order, which stated that plaintiffs' motion for summary judgment made a prima facie showing (although
plaintiffs' motion was ultimately denied on the ground that an issue of fact had been raised), dispensed with plaintiffs' need to establish a prima facie case at trial. The court denied plaintiffs' motion and then dismissed plaintiffs' complaint because plaintiffs presented no evidence. No judgment was entered. This appeal by plaintiffs from the court's order and decision ensued.

To the extent the court denied plaintiffs' oral motion, no appeal as of right lies from an order which does not decide a motion made on notice, and the instant motion, although not ex parte, was not made on notice (see CCA 1702 [a] [2]; CPLR 2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A], 2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent the court dismissed plaintiffs' complaint, no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]). [*2]