| Complete Med. Svcs. of Ny, P.C. As Assignee of Donald Mcnair v Mvaic |
| Motion No: 2007-00455 QC 08-29-2008 |
| Slip Opinion No: 2009 NY Slip Op 85167(U) |
| Decided on October 1, 2009 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
| COMPLETE MEDICAL SVCS. OF NY, P.C. as assignee of DONALD McNAIR, Respondent, -against- MVAIC, Appellant. |
DECISION Motion by appellant seeking leave to reargue this court's decision and order entered May 28, 2008 granted and, upon reargument, prior decision and order adhered to.
By decision and order dated May 28, 2008, this court dismissed appellant's appeal from the order of the Civil Court of the City of New York, Queens County (Lebedeff, J.), entered February 8, 2007, on the ground that a judgment had subsequently been entered and the right of direct appeal had terminated with the entry of the judgment. Appellant moves for leave to reargue, contending that no judgment was entered. However, the record before this court contained a judgment. Nevertheless, irrespective of whether a judgment was entered, the appeal must be dismissed since appellant, as limited by its brief, appealed from so much of the order as, according to appellant, denied appellant's cross motion for summary judgment dismissing the complaint. Inasmuch as the record does not contain such a cross motion, or even suggest that appellant made such a cross motion, appellant is not aggrieved by so much of the order from which it appeals (see CPLR 5511).
Presiding Justice, Appellate Term
Associate Justice, Appellate Term
Associate Justice, Appellate Term