MIA ACUPUNCTURE v. MERCURY INS CO (2009)

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 28, 2008. The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served various discovery requests, seeking, among other things, to conduct an examination before trial of plaintiff. Subsequently, defendant served plaintiff's assignor with a notice of deposition and notified plaintiff's counsel of the deposition request. When the assignor failed to appear for the deposition, defendant moved to dismiss the complaint, arguing that, by virtue of the assignment, party status may be imputed to the assignor and, even if such status could not be so imputed, the assignor was under the plaintiff-assignee's control (see CPLR 3126[3] ). The Civil Court denied the motion, and defendant appealed.

By its terms, the CPLR 3126(3) dismissal sanction is applicable only to the disclosure violations of parties, not nonparties (see Siegel, N.Y. Prac. § 367 [4th ed.] ). By virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees (see e.g. Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; Cardtronics, LP v. St. Nicholas Beverage Discount Ctr., Inc., 8 A.D.3d 419, 420, 778 N.Y.S.2d 299 [2004]; 6A N.Y. Jur. 2d, Assignments §§ 59, 85). Similarly, a provider's party status cannot be imputed to the assignor by virtue of an assignment. Thus, since plaintiff's assignor is not an officer, member or employee of plaintiff or otherwise under plaintiff's control, the Civil Court properly denied the motion for sanctions as against plaintiff pursuant to CPLR 3126 (Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3101:20; see Doelger, Inc. v. L. Fatato, Inc., 7 A.D.2d 1003, 184 N.Y.S.2d 256 [1959]; National Bank of N. Hudson v. Kennedy, 223 App.Div. 680, 229 N.Y.S. 323 [1928]; see also Schneider v. Melmarkets, Inc., 289 A.D.2d 470, 735 N.Y.S.2d 601 [2001]; Zappolo v. Putnam Hosp. Ctr., 117 A.D.2d 597, 498 N.Y.S.2d 66 [1986]; Andrew Carothers, M.D., P.C. v. GEICO Indem. Co., 20 Misc.3d 143[A], 2008 N.Y. Slip Op. 51756[U], 2008 WL 3865664 [App. Term, 2d & 11th Jud. Dists. 2008]; A.M. Med. Servs., P.C. v. Allstate Ins. Co., 14 Misc.3d 143[A], 2007 N.Y. Slip Op. 50384[U], 2007 WL 659969 [App. Term, 2d & 11th Jud. Dists. 2007] ).