Holtsville Chiropractic, P.C. v AutoOne Ins. Co.

[*1] Holtsville Chiropractic, P.C. v AutoOne Ins. Co. 2017 NY Slip Op 51516(U) Decided on November 3, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-160 Q C

Holtsville Chiropractic, P.C., as Assignee of Ana Gomez, Respondent,

against

AutoOne Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Mandell & Santora, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 8, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branches of defendant's motion seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial are 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.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branches of a motion by defendant seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial.

For the reasons stated in S.J. Pahng, M.D., P.C., as Assignee of Jin Hee Ma v AutoOne Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2842 Q C], decided herewith), the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial should have been granted; therefore, the branch of defendant's motion seeking to strike the notice of trial should also have been granted.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant's motion seeking to compel plaintiff to appear for an examination before trial and to strike the notice of trial are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017