February 14, 2007

First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50354(U))

Headnote

The plaintiff sought to recover first-party no-fault benefits for health care services rendered to its assignors. The defendant sought to dismiss the complaint for the plaintiff's failure to comply with discovery or, in the alternative, to compel discovery. The court ordered the plaintiff to respond to written interrogatories and produce a representative for a deposition, but the plaintiff failed to fully comply. The defendant then sought to dismiss the complaint for the plaintiff's continued failure to provide certain discovery, or, in the alternative, for summary judgment. The court held that the defendant's motion to dismiss the complaint pursuant to CPLR 3126 should have been granted, due to the plaintiff's failure to fully comply with the court order and failure to oppose the defendant's motion.

Reported in New York Official Reports at First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50354(U))

First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50354(U)) [*1]

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

2007 NY Slip Op 50354(U) [14 Misc 3d 141(A)]

Decided on February 14, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-323 K C.

First Help Acupuncture, P.C. a/a/o Robert Patterson, Antonio Saravia and Teresa Ramov, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered on November 16, 2005. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, for summary judgment.

Order reversed without costs and defendant’s motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover first-party no-fault benefits for health care services rendered to its assignors. In a prior cross motion, defendant sought to dismiss the complaint for plaintiff’s failure to comply with discovery or, in the alternative, to compel discovery. In support thereof, defendant’s attorney noted that plaintiff’s principal had failed to provide discovery with respect to her ownership, operation and control of plaintiff (see generally State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). By order dated December 28, 2004, plaintiff was directed to respond to written interrogatories and to produce an appropriate representative for a deposition.

In the instant motion, defendant seeks to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s continued failure to provide certain discovery, or, in the alternative, for summary judgment. In defendant’s moving papers, it is asserted that plaintiff’s principal failed to respond to any questions regarding the ownership, operation or control of plaintiff. Said motion was unopposed. The court below denied the motion.

In Lexington Acupuncture, P.C. v State Farm Ins. Co. (12 Misc 3d 90, supra), this court held that the defendant insurance company could properly seek discovery of information regarding whether plaintiff was fraudulently incorporated. Plaintiff failed to fully comply with [*2]the December 28, 2004 order. Moreover, plaintiff failed to oppose the
instant motion. In view of the foregoing, defendant’s motion to dismiss the complaint pursuant to CPLR 3126 should have been granted.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 14, 2007