Parisien v. MVAIC

77 Misc. 3d 131(A), 2022 NY Slip Op 51236(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 18, 2022
• Docket: 2021-446 K C
• Status: Unpublished

Opinion

Parisien v Mvaic (2022 NY Slip Op 51236(U)) [*1]

Parisien v MVAIC

2022 NY Slip Op 51236(U) [77 Misc 3d 131(A)]

Decided on November 18, 2022

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2021-446 K C

Jules Francois Parisien, M.D., as Assignee of Jean-Baptiste, Gerard, Respondent,

against

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).

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][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 AD2d 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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 18, 2022