SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered May 14, 2007. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by plaintiff’s employee and various documents annexed thereto. In opposition to plaintiff’s motion, defendant argued, inter alia, that the affidavit of plaintiff’s employee failed to lay a proper foundation for admission of the documents attached to plaintiff’s moving papers as business records pursuant to CPLR 4518 (a). The court below granted plaintiff’s motion for summary judgment, finding that plaintiff made a prima facie case and that defendant failed to raise a triable issue of fact. The instant appeal by defendant ensued.

Since the affidavit of plaintiff’s employee did not refer to the documents attached to plaintiff’s moving papers, let alone assert that they are plaintiff’s business records (see CPLR 4518 [a]), plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue. [*2]

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: October 09, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated March 15, 2007. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

Order modified by providing that defendant’s motion for summary judgment is granted to the extent of dismissing the second cause of action and by further providing that plaintiff’s cross motion for summary judgment is denied with respect to the second cause of action; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing as premature both plaintiff’s first cause of action (regarding plaintiff’s assignor Jonnise Atwater) and second cause of action (regarding plaintiff’s assignor Cossandra Cogdell), and plaintiff cross-moved for summary judgment. The court below granted plaintiff’s cross motion and denied defendant’s motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavits of the billers employed by a third party, submitted in support of plaintiff’s cross motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op [*2]50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]).

Defendant also contends that its motion seeking summary judgment dismissing the complaint as premature should have been granted since verification requested of plaintiff was still outstanding. Specifically, defendant claimed that plaintiff failed to provide it with an application for motor vehicle no-fault benefits for both assignors, hospital records for Ms. Atwater, and an assignment of benefits form executed by Ms. Cogdell.

Contrary to defendant’s contention, an insurer must accept a completed hospital facility form submitted on behalf of a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant acknowledged receipt of hospital facility forms for both Ms. Atwater and Ms. Cogdell. Accordingly, defendant was not entitled to summary judgment dismissing the complaint on the ground that plaintiff failed to provide it with applications for motor vehicle no-fault benefits.

Furthermore, with respect to Ms. Atwater’s hospital records, plaintiff’s submissions, consisting of a certified mail receipt and a signed return receipt postcard, each bearing the same number and a notation to the relevant medical records, created a presumption of their receipt (see e.g. New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]). Since defendant failed to rebut said presumption (id.), it did not demonstrate that plaintiff failed to respond to this request for verification. Therefore, it cannot be said that defendant was entitled to summary judgment, with respect to plaintiff’s first cause of action, on the ground that plaintiff failed to provide it with Ms. Atwater’s hospital records. Nor did defendant raise a triable issue of fact sufficient to defeat plaintiff’s cross motion. Accordingly, the court below properly granted plaintiff’s cross motion for summary judgment with respect to plaintiff’s first cause of action.

However, with respect to the verification request seeking a completed assignment of benefits form executed by Ms. Cogdell, the record shows that defendant timely mailed the verification request and follow-up request seeking said assignment of benefits form, and that plaintiff did not respond to said requests. Contrary to plaintiff’s assertions, the affidavit of defendant’s no-fault litigation examiner was sufficient to demonstrate that said requests were properly mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and the follow-up request was in proper form (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]). While plaintiff argues that the follow-up request was defective in that it failed to identify “in writing the missing verification” (see Insurance Department Regulations (11 NYCRR) § 65-3.6 [b]), we find that this contention lacks merit because the initial and the follow-up request were both seeking verification from plaintiff and, if plaintiff was uncertain as to what information defendant’s follow-up request was seeking, plaintiff should have resolved the issue by communicating with defendant rather than ignoring [*3]the follow-up request (see Westchester County Med. Ctr. v New York Cent. Mut. Fire. Ins. Co., 262 AD2d 553 [1999]; Metroscan Med. Diagnostics, P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50500[U] [App Term, 9th & 10th Jud Dists 2007]).

Since an insurer is entitled to receive verification of all relevant information requested (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), defendant demonstrated that plaintiff’s second cause of action was premature. Therefore, defendant was entitled to summary judgment dismissing plaintiff’s second cause of action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 09, 2008

—[*1] Jasne & Florio, LLP, White Plains, N.Y. (Hugh G. Jasne of counsel), for appellant.

Goldberg Segalla, LLP, White Plains, N.Y. (Kevin Burns of counsel), for respondent.

In an action to determine the defendant’s claims for no-fault benefits de novo, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.H.O.), entered June 14, 2007, which, after a nonjury trial, inter alia, dismissed his claims for medical expenses and lost earnings.

Ordered that the judgment is modified, on the law, by deleting the third, fourth, and sixth decretal paragraphs thereof, and so much of the seventh and eighth decretal paragraphs as dismissed the defendant’s claims for medical expenses related to his hospitalization from April 10, 1997 through April 12, 1997; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the defendant’s claims for medical expenses related to his hospitalization from April 10, 1997 through April 12, 1997, are reinstated, and the matter is remitted to the Supreme Court, Orange County, for further proceedings to determine the value of the defendant’s medical expenses related to his hospitalization from April 10, 1997, through April 12, 1997.

A no-fault arbitration tribunal twice concluded that the defendant James Stack was entitled to benefits arising from an automobile accident. Subsequently, the plaintiff, State Farm Automobile Insurance Company (hereinafter State Farm) commenced a de novo plenary action seeking a determination that medical expenses for Stack’s hospitalization were for a condition unrelated to the accident and that Stack failed to demonstrate his entitlement to lost earnings. After a nonjury trial, the Supreme Court determined, inter alia, that State Farm properly denied Stack’s claim for medical expenses as unrelated to the accident [*2]and that Stack failed to demonstrate his entitlement to lost earnings within the meaning of the no-fault statute. Stack contends that the Supreme Court’s judgment in favor of State Farm was not warranted by the facts.

As this case was tried without a jury, this Court’s authority is as broad as that of the trial court, and this Court may render a judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Upon our review of the record, we find that the evidence did not support the determination of the Supreme Court that Stack’s condition was not causally related to the accident.

An insurer seeking to deny no-fault benefits on the basis that a claimant’s condition is not causally related to an accident “has the burden to come forward with proof in admissible form to establish the . . . evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999]). The testimony of State Farm’s expert witness, an anesthesiologist and pain management specialist, that his opinion was based solely upon a hospital discharge summary and insurance claim form, rendered his opinion speculative and of little probative value (see Gorden v Tibulcio, 50 AD3d 460 [2008]).

In contrast, the testimony of Stack’s expert witness, a neurologist who based his opinion upon his examination of Stack and his review of Stack’s relevant medical records, including, inter alia, CT scans and magnetic resonance imaging, and determined that Stack’s symptoms first appeared within two weeks of the accident and progressively worsened, was sufficient to establish that Stack’s condition was causally related to the accident (see Scudera v Mahbubur, 299 AD2d 535, 536 [2002]).

As to Stack’s claim for lost earnings, the evidence supported the Supreme Court’s determination that he failed to demonstrate that he sustained a compensable lost wage claim within the no-fault statute (see Konstantatos v County of Suffolk, 174 AD2d 653 [1991]). Although a party may recover lost profits while self-employed (see Young v Utica Mut. Ins. Co., 86 AD2d 764 [1982]), Stack’s testimony, that after the accident he was unable to maintain his real estate business and stock market portfolio in the manner to which he was accustomed, was insufficient in the absence of financial records, such as tax returns, to establish his alleged lost earnings with reasonable certainty (see Thomas v Puccio, 270 AD2d 480 [2000]). Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Nancy S. Linden (Bruno, Gerbino & Soriano, LLP, Melville, N.Y. [Charles W. Benton], of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 25, 2008, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 10, 2007, in its favor and against the defendant in the principal sum of $51,585.52, upon the defendant’s failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

Service upon the defendant was effectuated through delivery of the summons and complaint upon the Assistant Deputy Superintendent and Chief of Insurance pursuant to Insurance Law § 1212 (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]). Although the defendant’s motion was made pursuant to CPLR 5015 (a) (1), under the circumstances of this case, it may be treated as a motion made under CPLR 317 as well (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]).

The defendant met its burden of showing that it did not receive actual notice of the summons [*2]in time to defend with an affidavit of its claims manager detailing its standard office practice concerning the handling of summonses and complaints, and asserting that the summons and complaint in this action was not received until after the entry of judgment (see Marine v Federal Ins. Co., 293 AD2d 721 [2002]). The plaintiff’s proof was insufficient to rebut that showing (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Moreover, the defendant established that it may have a meritorious defense to the action (see Taieb v Hilton Hotels Corp., 60 NY2d 725, 727 [1983]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]; Presbyterian Hosp. in City of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]). Accordingly, the defendant’s motion to vacate the clerk’s judgment entered upon its failure to appear or answer was properly granted. Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ., concur.

—[*1] Alden Banniettis, Brooklyn, N.Y. (Jeff Henle of counsel), for appellant.

Teresa M. Spina, Woodbury, N.Y. (Emilio A. Cacace of counsel), for respondent.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated April 26, 2007, which affirmed an order of the Civil Court of the City of New York, Kings County (Rubin, J.), entered August 8, 2005, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order dated April 26, 2007, is affirmed, with costs.

The Appellate Term properly affirmed the Civil Court order denying the plaintiff’s motion for summary judgment on the complaint and granting the defendant’s cross motion for summary judgment dismissing the complaint. The plaintiff’s evidentiary submissions revealed that the defendant insurance company timely issued denial of claim forms in April and May of 2001, which partially denied payment upon the ground that no fee schedule existed for the treatment provided, and payment could thus be limited to a reasonable and customary fee. Although “[a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]; see New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]), here the defendant’s denials of claim were issued on prescribed forms, and were not factually insufficient or vague. Under these circumstances, [*2]the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Allstate Ins. Co., 45 AD3d 579 [2007]; see also A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]).

Furthermore, the defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by submitting evidentiary proof that no fee schedule for the reimbursement of acupuncture treatments existed in 2001, and that it properly limited payment to “charges permissible for similar procedures under schedules already adopted” (11 NYCRR 68.5 [b]; see Insurance Law § 5108; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004]). In opposition to the cross motion, the plaintiff failed to raise an issue of fact as to whether reimbursement for its acupuncture services was properly limited.

The plaintiff further contends that the defendant failed to offer sufficient evidence in support of the “similar procedure” it chose for comparison to the services offered by the plaintiff in arriving at the rate of reimbursement. This contention, however, is not properly before this Court, as it was not raised in the Civil Court, and was not addressed by the Appellate Term (see Matter of New York City Hous. Auth. v Jackson, 48 AD3d 818, 820 [2008]). Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.

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, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2007. The order granted defendant’s motion to vacate the notice of trial and to direct plaintiff to respond to defendant’s discovery demands and appear for an examination before trial with respect to defendant’s defense based upon plaintiff’s alleged fraudulent incorporation.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served a notice of examination before trial and a notice for discovery and inspection. Thereafter, defendant moved to vacate the notice of trial and certificate of readiness filed by plaintiff, asserting that, contrary to plaintiff’s representation, discovery was not complete. The court granted defendant’s motion and directed plaintiff to provide complete and meaningful responses to defendant’s discovery demands with respect to defendant’s defense of fraudulent incorporation and to appear for an examination before trial (EBT) with respect to said defense. This appeal by plaintiff ensued.

Vacatur of the notice of trial and certificate of readiness was properly granted since the certificate of readiness contained the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50358[U] [App Term, 2d & 11th Jud Dists 2007]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). Moreover, contrary to plaintiff’s contention, defendant is not precluded from raising a defense based upon plaintiff’s allegedly fraudulent incorporation [*2](see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).

Defendant’s remaining contentions lack merit. Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 29, 2008

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, Kings County (Lila Gold, J.), entered April 25, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that plaintiffs’ assignors breached the cooperation clause of the insurance policy by failing to attend duly scheduled independent medical examinations (IMEs). The court below denied the motion, holding that an issue of fact remained as to the mailing and receipt of the examination notices. This appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

On appeal, plaintiff contends, inter alia, that defendant failed to create a triable issue of fact by competent proof that the assignors failed to attend the IMEs, and we agree. While defendant denied the claims based upon the assignors’ failures to appear for scheduled IMEs, defendant did not submit evidence in admissible form from anyone with personal knowledge of the assignors’ nonappearances (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed, plaintiff’s motion for summary [*2]judgment is granted and the matter remanded to the court below for the calculation of
statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: September 29, 2008

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, Kings County (Alan L. Lebowitz, J.H.O.), entered September 4, 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 offering evidence at trial in the event
of defendant’s noncompliance. Defendant opposed the motion, which was denied. This appeal by plaintiff ensued.

CPLR 3101 (a) provides for full disclosure of all matter “material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In view of the foregoing, plaintiff’s motion should have been granted 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. [*2]
Decision Date: September 10, 2008

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, Kings County (Alan L. Lebowitz, J.H.O.), entered September 27, 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

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, Kings County (Alan L. Lebowitz, J.H.O.), entered September 27, 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