February 13, 2009

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 50236(U))

Headnote

The court considered the plaintiff's motion to compel the deposition of the defendant in an action to recover assigned first-party no-fault benefits. The defendant failed to oppose the motion or seek a protective order. The main issue decided was whether the plaintiff's motion to compel the defendant to appear for a deposition should be granted. The court held that the motion should have been granted to the extent that the defendant is ordered to appear for a deposition within 30 days of the date of the order entered. The court reversed the order of the Civil Court of the City of New York, Kings County, and granted the plaintiff's motion.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 50236(U))

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 50236(U)) [*1]

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co.

2009 NY Slip Op 50236(U) [22 Misc 3d 134(A)]

Decided on February 13, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 23, 2009; it will not be published in the printed Official Reports.

Decided on February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ
2007-1991 K C.

Delta Diagnostic Radiology, P.C. a/a/o IVROSE DESIR, Appellant,
against
Country-Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered October 29, 2007. The order, insofar as appealed from, denied plaintiff’s motion to, inter alia, compel the deposition of defendant.

Order, insofar as appealed from, 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 date of the order entered hereon.

In this action to recover assigned first-party no-fault benefits, plaintiff moved to, inter alia, compel the deposition of defendant. Defendant failed to oppose plaintiff’s motion or to seek a protective order. Accordingly, the motion should have been granted 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, 112 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 2009