Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. 2009 NY Slip Op 51570(U) [24 Misc 3d 137(A)] Decided on July 14, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-500 K C.

Sweetwater Chiropractic, P.C. a/a/o JOSEPH R. ROSS, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered November 5, 2007. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion to amend its answer to add affirmative defenses and to compel plaintiff to respond to defendant's amended discovery demands.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and granted defendant's cross motion, which sought leave to amend the answer to assert the affirmative defenses that plaintiff was a fraudulently incorporated professional service corporation and that, as a result, plaintiff lacked standing to bring the instant action, and to compel plaintiff to respond to its amended discovery demands. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant's cross motion.

The Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer in order to interpose the aforementioned affirmative defenses (see State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]) since plaintiff failed to demonstrate that prejudice or surprise would result therefrom (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defenses were neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Ingrami v Rover, 45 AD3d 806, 808 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]). Moreover, defendant made a sufficient showing that its amended discovery demands were material and necessary to its defenses so as to warrant the granting of the branch of its
cross motion seeking to compel plaintiff to respond thereto (see CPLR 3101; Mallela, 4 NY3d 313).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009