July 21, 2017

Dana Chiropractic, P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 50944(U))

Headnote

The court considered an appeal from a provider seeking to recover assigned first-party no-fault benefits. The main issue was whether the defendant was entitled to an examination before trial of the plaintiff's owner, as well as the plaintiff's motion for summary judgment pending the completion of discovery. The court held that the defendant was entitled to an examination before trial of the plaintiff's owner, citing relevant statutes and previous cases. The court affirmed the order of the Civil Court, dismissing the portion of the appeal related to the continuation of plaintiff's motion for summary judgment and ordering the plaintiff to pay $25 in costs.

Reported in New York Official Reports at Dana Chiropractic, P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 50944(U))

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

Dana Chiropractic, P.C., as Assignee of Araujo, Carmencita, Appellant,
against
USAA Casualty Ins. Co., Respondent.

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. McDonnell & Adels, PLLC (Stephanie Tebbett, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 17, 2014. The order granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery.

ORDERED that so much of the appeal as is from the portion of the order that, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery is dismissed, as that portion of the order is not appealable as of right (see CCA 1702 [a] [2]) and leave to appeal therefrom has not been granted; and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial, and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery (see CPLR 3212 [f]).

Contrary to plaintiff’s contention, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Accordingly, the [*2]order, insofar as reviewed, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 21, 2017