July 14, 2009

Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51572(U))

Headnote

The court considered a motion by the defendant to dismiss the complaint due to the plaintiff's allegedly insufficient response to defendant's interrogatories. While the motion was pending, the defendant served the plaintiff with a notice to take the deposition of plaintiff's owner, Perumunda K. Sharma. The Civil Court denied defendant's motion and stated that the defendant did not establish its need for a deposition of Sharma. The court also noted that the plaintiff's purported cross motion, seeking a protective order with respect to the deposition of Sharma, was denied as moot. The main issue was whether the defendant had the entitlement to depose Sharma, and the holding of the case was that the portion of the order which provided that defendant did not establish its entitlement to depose Sharma is not appealable as of right, and the appeal was dismissed.

Reported in New York Official Reports at Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51572(U))

Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51572(U)) [*1]

Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co.

2009 NY Slip Op 51572(U) [24 Misc 3d 137(A)]

Decided on July 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 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
2008-708 K C.

Sharma Medical Services, P.C. as assignee of MARIA CHERVOVA, BEGUM JAHAN, FELIX JNBAPTISTE, JR., LUZ PEREZ, CARMEN SANTOS and STEVEN WEISMAN, Respondent,
against
Progressive Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered November 2, 2007. The order, insofar as appealed from as limited by the brief, held that defendant had not established its entitlement to depose plaintiff’s owner, Perumunda K. Sharma.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3126, to dismiss the complaint due to plaintiff’s allegedly insufficient response to defendant’s interrogatories. While the motion was pending, defendant served plaintiff with a notice to take the deposition of plaintiff’s owner, Perumunda K. Sharma (Sharma). After plaintiff served papers which purported to be a cross motion (but which did not include a notice of cross motion) seeking a protective order with respect to the deposition of Sharma, defendant submitted reply papers setting forth the reasons why defendant believed it was entitled to such a deposition. The Civil Court denied defendant’s motion. The court further stated that defendant did not establish its need for a deposition of Sharma and that plaintiff’s purported cross motion, which, the court noted, did not appear on its calendar, was denied as moot. Defendant appeals from so much of the order as held that defendant had not established its entitlement to depose Sharma.

The portion of the order which provided that defendant did not establish its entitlement to depose Sharma is not appealable as of right because it did not decide a motion on notice seeking such relief (CCA 1702 [a] [2]; CPLR 2211). Since leave to appeal from that portion of the order has not been granted, the appeal is dismissed (see CCA 1702 [c]; Robertson v United Equities, Inc., 61 AD3d 838 [2009]; Consolidated Resources, LLC v 210-220-230 Owner’s Corp., 59 AD3d 579 [2009]; Mohler v Nardone, 53 AD3d 600 [2008]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009