Laga v. Omni Indem. Co.

Opinion

Adelaida M. Laga, P.T., as Assignee of Miracle, Farah, Respondent,

against

Omni Indemnity Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered November 18, 2016. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and granted the branch of plaintiff's cross motion seeking leave to amend the caption to add American Independent Insurance Company as a defendant.

ORDERED that so much of the appeal as is from the portion of the order that granted the branch of plaintiff's cross motion seeking leave to amend the caption to add American Independent Insurance Company as a defendant is dismissed, as defendant is not aggrieved thereby (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order, insofar as appealed from and reviewed, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the vehicle which was involved in the accident in question and that, therefore, plaintiff had sued the wrong party. Defendant also appeals from the portion of the order that granted the branch of plaintiff's cross motion seeking leave to amend the caption to add American Independent Insurance Company as a defendant.

For the reasons stated in Charles Deng Acupuncture, P.C., as Assignee of Pierre, Rose E. v Omni Indem. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-864 K C], decided herewith), the order, insofar as appealed from and reviewed, is reversed, and defendant's [*2]motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019