TAM MEDICAL SUPPLY CORP v. AMERICAN INDEPENDENT INS CO (2021)

Supreme Court, Appellate Term, New York,

TAM MEDICAL SUPPLY CORP., as Assignee of Jean, Chery, Respondent, v. AMERICAN INDEPENDENT INS. CO., American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants, and Omni Indemnity Company, Appellant.

2018-2010 K C

Decided: December 10, 2021

PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ.

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

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant American Independent Ins. Co. (AIIC) which had sought to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved, among other things, for “an order pursuant to ․CPLR 3212 (a) denying [AIIC's] Motion for Summary Judgment.” By order entered September 18, 2018, the Civil Court denied AIIC's motion and plaintiff's cross motion. Defendant Omni Indemnity Company appeals from each and every part of the order.

Defendant Omni Indemnity Company is not aggrieved by so much of the order as denied the motion by AIIC which sought to dismiss the complaint insofar as asserted against it (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]). Nor is defendant Omni Indemnity Company aggrieved by so much of the order as denied the cross motion by plaintiff and held that a triable issue of fact existed as to whether AIIC did business in the State of New York (see CPLR 5511).

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

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