New York Community Hosp. of Brooklyn v Mercury Cas. Co.

[*1] New York Community Hosp. of Brooklyn v Mercury Cas. Co. 2016 NY Slip Op 50915(U) Decided on June 6, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1958 Q C

New York Community Hospital of Brooklyn, as Assignee of GRIGORIY BEREGOVOY, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered August 8, 2013. The order denied defendant's motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Plaintiff opposed the motion on the ground that defendant had failed to respond to discovery demands and that defendant's responses were necessary to oppose defendant's motion (see CPLR 3212 [f]). The Civil Court denied defendant's motion.

For the reasons stated in New York Community Hosp. of Brooklyn, as Assignee of Grigoriy Beregovoy v Mercury Cas. Co. (__ Misc 3d ___, 2016 NY Slip Op ____ [appeal No. 2013-2575 Q C], decided herewith), the order is modified by providing that the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 2016