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Supreme Court, Appellate Term, New York.

FAIR PRICE MEDICAL SUPPLY CORP., as assignee of Lisa Atilles, Appellant, v. ELRAC INC. & Enterprise Rent-A-Car, Respondents.

Decided: August 17, 2006

Present:  GOLIA, J.P., RIOS and BELEN, JJ. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains (James G. Eberz of counsel), for respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered April 21, 2005.   The order denied plaintiff's motion for summary judgment and granted defendants' cross motion to compel discovery to the extent of ordering plaintiff to submit to an examination before trial and produce the records and documents requested in defendants' notice to take deposition.

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 A.D.2d 377, 757 N.Y.S.2d 902 [2003] ).   To the extent our prior holding in S & M Supply Inc. v. Progressive Ins. Co., 8 Misc.3d 138(A), 2005 N.Y. Slip. Op. 51312(U), 2005 WL 1981548 [App. Term, 2d & 11th Jud. Dists.] suggests otherwise, it should no longer be followed.