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Fair Price Medical Supply Corp. v. ELRAC Inc.

New York Supreme Court, Appellate Term, Second Department


August 17, 2006

FAIR PRICE MEDICAL SUPPLY CORP., AS ASSIGNEE OF LISA ATILLES, APPELLANT,
v.
ELRAC INC. ET AL., RESPONDENTS.

Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, October 18, 2006

{**13 Misc 3d at 46} OPINION OF THE COURT

Memorandum

Appeal dismissed as academic.

In this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff moved for summary judgment and defendants cross-moved to compel plaintiff to produce outstanding discovery and to appear for an examination before trial or, in the alternative, to strike plaintiff's complaint and dismiss the action for plaintiff's failure to provide discovery. By order entered April 21, 2005, from which plaintiff appeals, the court below denied plaintiff's motion and granted defendants' cross motion to the extent of ordering a representative of plaintiff to appear for a deposition and to produce the records and documents requested in defendants' notice to take deposition. Subsequent to the entry of the order appealed from, the Civil Court entered an order dismissing the action. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]). To the extent our prior holding in S&M Supply Inc. v Progressive Ins. Co. (8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists 2005]) suggests otherwise, it should no longer be followed.

Golia, J. P., Rios and Belen, JJ., concur.

20060817

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