July 20, 2009

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))

https://www.beynensonlaw.com/case-law/new-york-first-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2009-ny-slip-op51593u/

Court: Appellate Term, Second Department
Decided: July 20, 2009
Citation: 2009 NY Slip Op 51593(U) · 24 Misc 3d 139(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 139(A), 2009 NY Slip Op 51593(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's right to appeal directly from the discovery and amendment order terminated when judgment was entered in the action. The Civil Court had permitted the insurer to add a fraudulent-incorporation defense and directed the provider to produce its owner for a deposition within 60 days, with dismissal for noncompliance. After the provider failed to comply, the Civil Court dismissed the complaint with prejudice on the insurer's opposed application, and judgment was entered. Applying Matter of Aho, the Appellate Term, Second Department, dismissed the provider's appeal from the earlier order.

Reported in New York Official Reports at New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))

[*1]

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2009 NY Slip Op 51593(U) [24 Misc 3d 139(A)]

Decided on July 20, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1967 Q C.

New York First Acupuncture, P.C. a/a/o ANTHONY HYMAN, Appellant,
against
State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 6, 2008. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to amend the answer to include the defense of fraudulent incorporation and to compel plaintiff to produce its owner, Valentina Anikeyeva, for a deposition.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 6, 2008, granted defendant leave to amend the answer to include the defense of fraudulent incorporation and directed plaintiff to produce its owner, Valentina Anikeyeva, for a deposition within 60 days of the order. The order also stated that plaintiff’s failure to produce its owner for the deposition would result in dismissal. Plaintiff appeals from the order entered October 6, 2008.

Subsequent to the entry of the order appealed from, the Civil Court, upon an application by defendant which plaintiff opposed, entered an order dismissing the complaint with prejudice due to plaintiff’s failure to comply with the October 6, 2008 order. A judgment was entered pursuant thereto on April 10, 2009.

The appeal must be dismissed because the right of direct appeal from the October 6, 2008 order terminated with the entry of judgment in this action (see Matter of Aho, 39 NY2d 241, 248 [1976]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 20, 2009

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