December 9, 2009

Mia Acupuncture, P.C. v Mercury Ins. Co. (2009 NY Slip Op 29509)

Headnote

In the legal case Mia Acupuncture, P.C. v Mercury Ins. Co., the court heard a case by a provider to recover assigned first-party no-fault benefits. Defendant requested to conduct an examination before trial of the plaintiff, and when the assignor failed to appear for the deposition, defendant moved to dismiss the complaint. The main issue decided by the court was whether party status could be imputed to the assignor based on the assignment of no-fault benefits to the provider, and if the assignor was under the plaintiff assignee's control. The holding of the court was that the CPLR 3126 (3) dismissal sanction for disclosure violations applies only to the violations of parties and not nonparties. The court found that by virtue of the assignment, the eligible injured persons have divested themselves of their interest, and similarly, a provider's party status cannot be imputed to the assignor by virtue of an assignment. Therefore, the Civil Court properly denied the motion for sanctions against plaintiff pursuant to CPLR 3126.

Reported in New York Official Reports at Mia Acupuncture, P.C. v Mercury Ins. Co. (2009 NY Slip Op 29509)

Mia Acupuncture, P.C. v Mercury Ins. Co.

2009 NY Slip Op 29509 [26 Misc 3d 39]

Accepted for Miscellaneous Reports Publication

AT2

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

As corrected through Wednesday, February 24, 2010

[*1]

Mia Acupuncture, P.C., as Assignee of Noel Kellon, Respondent,
v
Mercury Ins. Co., Appellant.

Supreme Court, Appellate Term, Second Department, December 9, 2009

APPEARANCES OF COUNSEL

Picciano & Scahill, P.C., Westbury (Jason Tenenbaum of counsel), for appellant. Ilona Finkelshteyn, P.C., Brooklyn, for respondent.

{**26 Misc 3d at 40} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served various discovery requests, seeking, among other things, to conduct an examination before trial of plaintiff. Subsequently, defendant served plaintiff’s assignor with a notice of deposition and notified plaintiff’s counsel of the deposition request. When the assignor failed to appear for the deposition, defendant moved to dismiss the complaint, arguing that, by virtue of the assignment, party status may be imputed to the assignor and, even if such status could not be so imputed, the assignor was under the plaintiff assignee’s control (see CPLR 3126 [3]). The Civil Court denied the motion, and defendant appealed.

By its terms, the CPLR 3126 (3) dismissal sanction is applicable only to the disclosure violations of parties, not nonparties (see Siegel, NY Prac § 367 [4th ed]). By virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees (see e.g. Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85). Similarly, a provider’s party status cannot be imputed to the assignor by virtue of an assignment. Thus, since plaintiff’s assignor is not an officer, member or employee of plaintiff or otherwise under plaintiff’s control, the Civil Court properly denied the motion for sanctions as against plaintiff pursuant to CPLR 3126 (Connors, Practice Commentaries, McKinney’s Cons Laws of [*2]NY, Book 7B, CPLR C3101:20; see Doelger, Inc. v L. Fatato, Inc., 7 AD2d 1003 [1959]; National Bank of N. Hudson v{**26 Misc 3d at 41} Kennedy, 223 App Div 680 [1928]; see also Schneider v Melmarkets Inc., 289 AD2d 470 [2001]; Zappolo v Putnam Hosp. Ctr., 117 AD2d 597 [1986]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51756[U] [App Term, 2d & 11th Jud Dists 2008]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Rios, J.P., Pesce and Golia, JJ., concur.