Key Takeaway
Court case about correcting order notation from "consent" to reflect actual oral argument in no-fault insurance provider lawsuit against Tri-State Consumer Insurance.
Jamaica Dedicated Med. Care, P.C. v Tri-State Consumer Ins. Co., 2015 NY Slip Op 25458 (App. Term 2d Dept. 2016)
(1) “In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court, entered January 10, 2013, denying defendant’s motion to resettle so much of a prior order of the same court, entered September 15, 2010, which had decided a motion and cross motion for summary judgment, so as to delete a notation on that[*2]order stating that the order was made on “consent” and is “not appealable,” or for alternative relief.”
(2) At the outset, we note that, contrary to plaintiff’s argument on appeal, so much of the January 10, 2013 order as denied resettlement is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 ; Bergin v Anderson, 216 App Div 844 ; see also 4 NY Jur 2d, Appellate Review § 57; 10 Carmody-Wait 2d § 70:31).
(3) “That attorney attested that both he and plaintiff’s attorney had “vigorously argued” the motion and cross motion that day, and explicitly denied that the order had been made on consent. Defendant also submitted a copy of the September 15, 2010 order, apparently handed to the parties on September 15, 2010, the return date, which does not contain the “consent/not appealable” notation. Defendant further noted that all copies of the September 15, 2010 order state that it was made after oral argument.”
(4) “Accordingly, the order entered January 10, 2013 is reversed and the branch of defendant’s motion seeking to resettle the prior order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted.”
Kings County Chicanery. Civil Kings is a land of its own and to its own. I cannot say anything beyond that observation.
