Friday, January 9, 2009

No Appeal Lies From the Denial of Motion Made Without Notice or a Decision Without an Order or Judgment

New Century Osteopathic & George Liakeas, M.D. d/b/a Medical Plaza a/a/o Nodira Usmanova v. State Farm Fire & Cas. Ins. Co.

(App. Term, 2nd Dept., decided 12/31/2008)

Some time prior to trial, plaintiff medical provider moved for summary judgment.  In denying that motion, Kings Civil held that plaintiffs had made a prima facie showing of entitlement to judgment, but that State Farm had created a question of fact in its opposition papers.  

At trial, plaintiffs' counsel orally moved for a determination that the court's prior order, which stated that plaintiffs' motion for summary judgment made a prima facie showing, dispensed with plaintiffs' need to establish a prima facie case at trial. The trial judge denied plaintiffs' motion and then dismissed plaintiffs' complaint because plaintiffs presented no evidence. No judgment was entered. Plaintiffs appealed.

In DISMISSING plaintiffs' appeal, the Appellate Term, Second Department, held:
To the extent the court denied plaintiffs' oral motion, no appeal as of right lies from an order which does not decide a motion made on notice, and the instant motion, although not ex parte, was not made on notice (see CCA 1702 [a] [2]; CPLR 2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A], 2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent the court dismissed plaintiffs' complaint, no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]).
Even if a party's motion proof has been held to be sufficient to warrant summary judgment, it must re-present that proof at trial or risk a directed verdict.

1 comment:

Anonymous said...

This decision is actually more significant than it might appear (although the legal principle involved is not new, just somewhat obscure). I am personally aware of situations where a judge issues an order without any motion at all being made, verbal or otherwise, and the party aggrieved by the order has only one recourse: a motion by order to show cause to judge who issued the order, and if that judge won't sign it, then a motion by order to show cause to the appellate division asking for leave to appeal.

And good luck getting a stay pending hearing and determination of the motion. More likely than not, you won't.

Most of the time this is not a problem, but there are some judges out there who will issue an order sua sponte, with dire consequences, and ruin somebody's whole day.