July 7, 2015

Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51049(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Healthy Way Acupuncture, P.C., filed a lawsuit to recover assigned first-party no-fault benefits from the defendant, State Farm Mutual Automobile Ins. Co. The defendant moved for summary judgment to dismiss the complaint, citing the plaintiff's failure to appear for duly scheduled examinations under oath, with supporting affirmation from their law firm. The plaintiff also cross-moved to disqualify the defendant's law firm, claiming that a member of the firm was a necessary witness in the case. The main issue decided by the court was whether the plaintiff's failure to appear for scheduled examinations under oath provided grounds for the defendant's motion for summary judgment. The court ultimately affirmed the order, granting the defendant's motion for summary judgment and implicitly denying the plaintiff's cross motion to disqualify the defendant's law firm. The holding of the case was in favor of the defendant, State Farm Mutual Automobile Ins. Co., with the order being affirmed by the court.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51049(U))

Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51049(U)) [*1]

Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2015 NY Slip Op 51049(U)

Decided on July 7, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015

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

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-2164 Q C

Healthy Way Acupuncture, P.C. as Assignee of ELSIE CAMBERO, Appellant, July 7, 2015
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 12, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s cross motion to, among other things, disqualify defendant’s law firm.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and implicitly denying plaintiff’s cross motion.

For the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: July 07, 2015