Opinion
No. 2014–1131KC.
07-21-2017
DANA CHIROPRACTIC, P.C., as Assignee of Araujo, Carmencita, Appellant, v. USAA CASUALTY INS. CO., Respondent.
ORDERED that so much of the appeal as is from the portion of the order that, in effect, continued plaintiff's motion for summary judgment pending the completion of discovery is dismissed, as that portion of the order is not appealable as of right (see CCA 1702[a][2] ) and leave to appeal therefrom has not been granted; and it is further,
ORDERED that the order, insofar as reviewed, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff's owner for an examination before trial, and, in effect, continued plaintiff's motion for summary judgment pending the completion of discovery (see CPLR 3212[f] ).
Contrary to plaintiff's contention, defendant is entitled to an examination before trial of plaintiff's owner (see CPLR 3101[a] ; see also Midwood Acupuncture, P.C. v. State Farm Fire & Cas. Co., 21 Misc.3d 144[A], 2008 N.Y. Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v. State Farm Mut. Auto. Ins. Co., 20 Misc.3d 136[A], 2008 N.Y. Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008] ). Accordingly, the order, insofar as reviewed, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.