August 22, 2014

Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))

Headnote

The court considered the defendant-insurer's motion to dismiss the complaint unless the plaintiff complied with the notice of deposition. The main issue decided was whether the defendant was entitled to depositions relating to its excessive treatment and fee schedule defenses, in light of the fact that it did not demonstrate entitlement to those depositions by timely denying the plaintiff's first-party no-fault claim. The court ultimately held that the defendant-insurer failed to demonstrate entitlement to the depositions and reversed the order, denying the defendant's motion. As a result, the defendant's motion to dismiss the complaint was also denied by the court.

Reported in New York Official Reports at Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))

Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U)) [*1]

Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co.

2014 NY Slip Op 51290(U) [44 Misc 3d 140(A)]

Decided on August 22, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan,JJ.
570045/14

Okslen Acupuncture P.C. a/a/o Denvil B. Cleghorn, Plaintiff-Appellant, –
against
Unitrin Advantage Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered November 26, 2012, which conditionally granted defendant’s motion to dismiss the complaint unless plaintiff complied with defendant’s notice of deposition.

Per Curiam.

Order (Robert R. Reed, J.), entered November 26, 2012, reversed, with $10 costs, and defendant’s motion denied.

The defendant-insurer failed to demonstrate entitlement to depositions relating to its excessive treatment and fee schedule defenses, in the absence of any affirmative showing that it preserved those defenses by timely denying plaintiff’s 2006 first-party no-fault claim (see Triangle R. Inc. v Progressive Ins. Co., 36 Misc 3d 151[A], 2012 NY Slip Op 51685[U][App Term, 1st Dept 2012]). In view of the foregoing, we need not and do not address plaintiff’s alternative argument that the noticed depositions were otherwise unwarranted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: August 22, 2014