December 10, 2010

W & Z Acupuncture, P.C. v Allstate Ins. Co. (2010 NY Slip Op 52385(U))

Headnote

The court considered a case in which W & Z Acupuncture, P.C. as Assignee of LaFontant Abelard appealed an order from the Civil Court of the City of New York, Queens County. The order had adjourned plaintiff's motion for summary judgment and defendant's cross motion for summary judgment, and also required plaintiff to provide discovery. The court dismissed the appeal as academic due to the subsequent dismissal of the action by the Civil Court for the plaintiff's failure to produce the court-ordered discovery. The main issue decided was the dismissal of the action rendering the appeal academic. The holding of the case was that the dismissal of the action rendered the appeal academic, in line with previous case law.

Reported in New York Official Reports at W & Z Acupuncture, P.C. v Allstate Ins. Co. (2010 NY Slip Op 52385(U))

W & Z Acupuncture, P.C. v Allstate Ins. Co. (2010 NY Slip Op 52385(U)) [*1]

W & Z Acupuncture, P.C. v Allstate Ins. Co.

2010 NY Slip Op 52385(U) [30 Misc 3d 142]

Decided on December 10, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-1817 Q C.

W & Z Acupuncture, P.C. as Assignee of LaFontant Abelard, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 28, 2008. The order adjourned plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment and ordered plaintiff to provide discovery.

ORDERED that the appeal is dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. In the order appealed from, the court adjourned both motions to a later date and ordered plaintiff to produce employment records for its billing manager and to produce its billing manager for a deposition. Subsequent to that order, the Civil Court issued an order dismissing the action since plaintiff failed to produce the court-ordered discovery. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010