General
Royal Insurance Company of America, Appellant-Respondent, v. Mercy Hospital et al., Respondents-Appellants, et al., Counterclaim Defendant
204 A.D.2d 219612 N.Y.S.2d 137·New York Supreme Court, Appellate Division·1994·NY
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Opinion
Royal Insurance Company of America, Appellant-Respondent, v Mercy Hospital et al., Respondents-Appellants, et al., Counterclaim Defendant.
[612 NYS2d 137]
[MAJORITY]
—Order and judgment (one paper), Supreme Court, New York County (Marion Lewis, Special Referee), entered April 23, 1993, granting defendants’ motion pursuant to CPLR 4401 to dismiss the complaint for failure to establish a prima facie case made at the close of plaintiff’s case, unanimously affirmed, with costs.
Defendants’ cross appeal from orders of the Supreme Court, New York County (Edward Greenfield, J.), entered on or about September 18, 1989, March 27, 1990 and August 29, 1990, unanimously dismissed for lack of aggrievement, without costs.
A motion pursuant to CPLR 4401 to dismiss for failure to establish a prima facie case should be granted if there is no rational process by which a trier of fact could find for a plaintiff and against a defendant upon the evidence presented (Kleinmunz v Katz, 190 AD2d 657). Viewing plaintiff insurer’s evidence as to the amount of premiums due it in a light most favorable to it, we find there was insufficient evidence from which a reasonable person might conclude that defendant hospitals and the Roman Catholic Diocese of Rockville Centre owe any premiums on the policies plaintiff issued to them. Plaintiff insurer failed to preserve most of the policies’ endorsements and certificates in support of its claims, and its resort to secondary source documentary evidence is unavailing.
Accordingly, the complaint was properly dismissed. The prevailing defendants’ cross appeal from three intermediate orders terminated with the entry of judgment in the action (Matter of Aho, 39 NY2d 241, 248) and under the instant circumstances they are not aggrieved (CPLR 5511; see, Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488). Thus, the cross appeal from these orders should be dismissed. Concur—Carro, J. P., Wallach, Asch, Nardelli and Williams, JJ.