September 10, 2008

Bath Med. Supply, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51872(U))

Headnote

The relevant facts of the case involve a provider, Bath Medical Supply, Inc., seeking to recover first-party no-fault benefits, and filing a motion to compel the deposition of the defendant, American Transit Insurance Co. The defendant did not oppose the motion, and the court denied the plaintiff's motion, which included a request for a conditional order striking the defendant's answer or precluding the defendant from testifying if they did not comply. The main issue decided was whether the court should have granted the plaintiff's motion to compel the defendant to appear for a deposition, and the holding of the case was that the order was reversed, and the plaintiff's motion was granted to the extent that the defendant was ordered to appear for a deposition within 30 days of the order. The decision was made by Pesce, P.J., Rios and Steinhardt, JJ., and was published by the New York State Law Reporting Bureau.

Reported in New York Official Reports at Bath Med. Supply, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51872(U))

Bath Med. Supply, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51872(U)) [*1]

Bath Med. Supply, Inc. v American Tr. Ins. Co.

2008 NY Slip Op 51872(U) [20 Misc 3d 145(A)]

Decided on September 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1712 K C.

Bath Medical Supply, Inc., as assignee of Anthony Pivonka, Appellant,
against
American Transit Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered September 27, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from testifying in the event defendant fails to comply. Defendant failed to oppose said motion. Accordingly, the court should have granted plaintiff’s motion to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008