Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co.

[*1] Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co. 2006 NY Slip Op 52221(U) [13 Misc 3d 138(A)] Decided on October 27, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-845 K C.

Vista Surgical Supplies, Inc. AAO MICHAEL GARCIA, Appellant,

against

Lumbermans Mutual Casualty Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 15, 2005. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted that branch of defendant's cross motion which sought to compel examinations before trial of plaintiff, plaintiff's assignor and the plaintiff's assignor's treating physicians to the extent of directing plaintiff to appear for an examination before trial.

Appeal dismissed as academic.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendant cross-moved to, inter alia, compel plaintiff to appear for an examination before trial. By order entered March 15, 2005, from which plaintiff now appeals, the court denied plaintiff's motion for summary judgment and granted that branch of defendant's cross motion which sought an order compelling depositions to the extent of directing plaintiff to appear for a deposition on or before May 6, 2005. Thereafter, plaintiff moved for reargument and defendant cross-moved for summary judgment dismissing the complaint based on plaintiff's failure to appear for an examination before trial on or before May 6, 2005 as ordered by the court. By order entered June [*2]28, 2005, the court denied plaintiff's motion for reargument and granted defendant's cross motion for summary judgment dismissing the complaint since it was undisputed that plaintiff
never appeared for an examination before trial. The dismissal of the action rendered
the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Fair Price Med. Supply Corp. v ELRAC Inc.,13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]). Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 27, 2006