Dana Chiropractic, P.C. v. USAA Cas. Ins. Co.

Appellate Terms of the Supreme Court of New York

Dana Chiropractic, P.C. v. USAA Cas. Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 21, 2017

Docket2017 NYSlipOp 50944(U)

StatusPublished

This text of Dana Chiropractic, P.C. v. USAA Cas. Ins. Co. (Dana Chiropractic, P.C. v. USAA Cas. Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dana Chiropractic, P.C. v. USAA Cas. Ins. Co., (N.Y. Ct. App. 2017).

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Opinion

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

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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

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Dana Chiropractic, P.C. v. USAA Cas. Ins. Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/dana-chiropractic-pc-v-usaa-cas-ins-co-nyappterm-2017.