Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50673(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered January 6, 2006. The order, insofar as appealed from as limited by plaintiff’s brief, granted defendant’s motion to compel examinations before trial of plaintiff and plaintiff’s assignor.

Appeal dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved pursuant to CPLR 3212 (f) to stay plaintiff’s motion for summary judgment so that defendant could conduct examinations before trial of plaintiff’s assignor and the two other people who were allegedly inside the vehicle when the accident occurred. The court denied both motions and directed plaintiff to comply with defendant’s discovery demands. Thereafter, in an order entered January 6, 2006, from which plaintiff appeals, the court, insofar as is relevant, granted defendant’s motion to compel plaintiff and plaintiff’s assignor to appear for an examination before trial on February 7, 2006. Subsequent to the entry of the January 6, 2006 order appealed from, the Civil Court entered an order dismissing the action since plaintiff had not obtained a stay of enforcement, nor had plaintiff or its assignor appeared for the ordered examinations before trial. Thus, dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 [*2]Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007