N.Y. First Acupuncture v. State Farm Mut.

Full title: NEW YORK FIRST ACUPUNCTURE, P.C. a/a/o ANTHONY HYMAN, Appellant, v. STATE…

Court: Appellate Term of the Supreme Court of New York, Second Department

Date published: Jul 20, 2009

2009 N.Y. Slip Op. 51593 (N.Y. App. Term 2009)

Opinion

2008-1967 Q C.

Decided July 20, 2009.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 6, 2008. The order, insofar as appealed from, granted the branches of defendant's motion seeking to amend the answer to include the defense of fraudulent incorporation and to compel plaintiff to produce its owner, Valentina Anikeyeva, for a deposition.

Appeal dismissed.

PRESENT: WESTON, J.P., RIOS and STEINHARDT, JJ.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 6, 2008, granted defendant leave to amend the answer to include the defense of fraudulent incorporation and directed plaintiff to produce its owner, Valentina Anikeyeva, for a deposition within 60 days of the order. The order also stated that plaintiff's failure to produce its owner for the deposition would result in dismissal. Plaintiff appeals from the order entered October 6, 2008.

Subsequent to the entry of the order appealed from, the Civil Court, upon an application by defendant which plaintiff opposed, entered an order dismissing the complaint with prejudice due to plaintiff's failure to comply with the October 6, 2008 order. A judgment was entered pursuant thereto on April 10, 2009.

The appeal must be dismissed because the right of direct appeal from the October 6, 2008 order terminated with the entry of judgment in this action ( see Matter of Aho, 39 NY2d 241, 248).

Weston, J.P., Rios and Steinhardt, JJ., concur.