September 10, 2008

Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51871(U))

Headnote

The relevant facts of the case included a provider's motion to compel the deposition of the defendant in an action to recover assigned first-party no-fault benefits. Defendant failed to oppose the motion. The main issue decided was whether the court should grant the plaintiff's motion to compel the defendant to appear for a deposition, and for a conditional order striking the defendant's answer or precluding the defendant from testifying in the event of failure to comply. The holding of the case was that the order denying the plaintiff's motion was reversed without costs, and the plaintiff's motion was granted to the extent that the defendant was ordered to appear for a deposition within 30 days of the order. This decision was based on the failure of the defendant to oppose the motion and the legal precedent indicating that the court should have granted the plaintiff's motion to compel the defendant to appear for a deposition.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51871(U))

Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51871(U)) [*1]

Vista Surgical Supplies, Inc. v American Tr. Ins. Co.

2008 NY Slip Op 51871(U) [20 Misc 3d 145(A)]

Decided on September 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1711 K C.

Vista Surgical Supplies, Inc. a/a/o Catina Hale, Appellant,
against
American Transit Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 26, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from testifying in the event defendant fails to comply. Defendant failed to oppose said motion. Accordingly, the court should have granted plaintiff’s motion to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008