North Val. Med., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50904(U))

Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Petre and Zabokritsky, P.C. (Mark Petre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered January 26, 2017. The order denied defendant’s motion to dismiss the complaint or, in the alternative, to compel plaintiff to produce its owner for an examination before trial, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to produce its owner for an examination before trial is granted and plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3211, arguing, among other things, that plaintiff had been reimbursed pursuant to the fee schedule of the practitioner provider option (PPO) agreement entered into between plaintiff and MultiPlan, Inc. (MultiPlan) and that plaintiff had failed to name Multiplan as a necessary party. In the alternative, defendant sought to compel plaintiff to produce its owner for an examination before trial (EBT). Plaintiff cross-moved for summary judgment. By order entered January 26, 2017, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion for summary judgment.

A review of the record indicates that the Civil Court properly denied the branch of defendant’s motion seeking, pursuant to CPLR 3211, to dismiss the complaint. The affidavits and documents annexed to defendant’s moving papers failed to establish that the corporate plaintiff was a party to the PPO contract, dated October 1998, which states that it is between Emerth L. Coburn, M.D., as an “individual practitioner,” and MultiPlan.

With respect to the branch of defendant’s motion seeking, in the alternative, to compel plaintiff to produce its owner for an EBT, it is noted that CPLR 3101 (a) provides for the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” What is “material and necessary” is left to the sound discretion of the court (see Matter of U.S. Pioneer Elecs. Corp. [Nikko Elec. Corp. of Am.], 47 NY2d 914, 916 [1979]; Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Here, according to defendant, Dr. Coburn explicitly requested Multiplan to include within the scope of his individual PPO contract with Multiplan all bills submitted to [*2]Multiplan bearing plaintiff’s name and taxpayer identification number. Consequently, the Civil Court improvidently exercised its discretion in denying defendant’s alternate relief of compelling an EBT of Dr. Coburn, since defendant is seeking material and necessary evidence to support its defense, as defendant paid plaintiff’s claims in accordance with the provisions of the PPO contract.

Furthermore, plaintiff failed to establish its prima facie entitlement to summary judgment, as the affidavit and annexed documentation submitted in support of its cross motion do not establish that the claims in question had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). In view of the foregoing, plaintiff’s cross motion should have been denied.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to produce its owner for an examination before trial is granted and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.