July 20, 2009

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))

Headnote

The main issue in the case New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. involved the defendant's motion seeking to amend the answer to include the defense of fraudulent incorporation and to compel the plaintiff to produce its owner, Valentina Anikeyeva, for a deposition. The Civil Court granted the branches of defendant's motion and directed the plaintiff to produce its owner for a deposition within 60 days of the order, with the consequence of failure to do so resulting in dismissal. Subsequently, the Civil Court entered an order dismissing the complaint with prejudice due to plaintiff's failure to comply with the previous order. The main holding of the case was that the appeal must be dismissed because the right of direct appeal from the previous order terminated with the entry of judgment in the action. Therefore, the appeal was dismissed.

Reported in New York Official Reports at New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U)) [*1]

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

2009 NY Slip Op 51593(U) [24 Misc 3d 139(A)]

Decided on July 20, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1967 Q C.

New York First Acupuncture, P.C. a/a/o ANTHONY HYMAN, Appellant,
against
State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 6, 2008. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to amend the answer to include the defense of fraudulent incorporation and to compel plaintiff to produce its owner, Valentina Anikeyeva, for a deposition.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 6, 2008, granted defendant leave to amend the answer to include the defense of fraudulent incorporation and directed plaintiff to produce its owner, Valentina Anikeyeva, for a deposition within 60 days of the order. The order also stated that plaintiff’s failure to produce its owner for the deposition would result in dismissal. Plaintiff appeals from the order entered October 6, 2008.

Subsequent to the entry of the order appealed from, the Civil Court, upon an application by defendant which plaintiff opposed, entered an order dismissing the complaint with prejudice due to plaintiff’s failure to comply with the October 6, 2008 order. A judgment was entered pursuant thereto on April 10, 2009.

The appeal must be dismissed because the right of direct appeal from the October 6, 2008 order terminated with the entry of judgment in this action (see Matter of Aho, 39 NY2d 241, 248 [1976]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 20, 2009