V.S. Medical Services, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 51473(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated November 1, 2006. The order denied defendant’s motion to dismiss the complaint and awarded plaintiff $50 in costs.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel the appearance for deposition of, among others, plaintiff’s treating physician. The court granted the motion to the extent that plaintiff was ordered to provide the treating physician by a date certain. The order further provided that the court would dismiss the complaint if plaintiff failed to comply with the order. Defendant then served a notice for deposition, dated April 7, 2006, for a deposition scheduled for April 12, 2006 at 3:00 P.M. The deposition did not go forward, and defendant moved for an order, pursuant to the prior order, to dismiss the complaint. Defendant now appeals from the order denying its motion to dismiss the complaint and awarding plaintiff $50 in costs.

In support of defendant’s motion to dismiss the complaint, defendant did not offer the affidavit of a person with personal knowledge of the facts. The affirmation by defendant’s attorney, stating that plaintiff failed to produce plaintiff’s physician for the deposition, was not based on personal knowledge of the facts which he alleged, and, as such, is based upon unsubstantiated hearsay and has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Said v Abarn Equip. Corp., 195 Misc 2d 451, 452 [2002]). Accordingly, defendant’s motion was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Inc. Co., 35 AD3d 720 [2006]). [*2]

With respect to the court’s award to plaintiff of costs in the sum of $50, we note that CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was not an improvident exercise of the court’s discretion (see e.g. Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: April 29, 2008