| Ava Acupuncture, P.C. As Assignee of Rufino Delacruz & Debra Rudden v State Farm Mut. Auto. Ins. Co. |
| Motion No: 2007-01840 KC |
| Slip Opinion No: 2017 NY Slip Op 68253(U) |
| Decided on March 15, 2017 |
| 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. |
of the State of New York for the 2nd, 11th & 13th judicial Districts
MICHAEL L. PESCE, P.J.
THOMAS P. ALIOTTA
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
| Ava Acupuncture, P.C. as Assignee of Rufino Delacruz and Debra Rudden, Appellant, v State Farm Mutual Automobile Ins. Co., Respondent. |
Motions by respondent to dismiss the appeals from the orders of the Civil Court of the City of New York, Kings County, entered September 4, 2007 and October 15, 2010, respectively.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is
ORDERED that on the court's own motion, that the respondent's motions are consolidated for purposes of disposition; and it is further,
ORDERED that the motions are denied.
Contrary to appellant's assertion in opposition to respondent's motions, the provisions of the declaratory judgment entered in the Supreme Court, Nassau County, would appear to apply to the parties to this appeal. Nevertheless, the proper procedure is not a motion to dismiss the appeal as moot but rather for respondent to move for relief in the Civil Court based on the declaratory judgment, as the appeal would not be rendered moot unless and until respondent's res judicata claim is established in the Civil Court. The parties are cautioned that a frivolous appeal may subject the offending parties to sanctions (see Rules of the Chief Administrator of the Courts [22 NYCRR] part 130; Rules of the Appellate Terms, 2d Dept [22 NYCRR] § 730.3 [g]).
ENTER:
Paul Kenny
Chief Clerk