AVA Acupuncture, P.C. v AutoOne Ins. Co. (2010 NY Slip Op 51350(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 5, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands, to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order.

ORDERED that the order is modified by providing that defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands is granted to the extent of compelling plaintiff to provide the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection within 60 days of the date of this decision and order; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to compel plaintiff to provide discovery and to produce its owner, Valentina Anikeyeva, for an examination before trial. The Civil Court denied plaintiff’s motion for summary judgment as premature and granted defendant’s cross motion to compel plaintiff to provide discovery to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant argued in opposition to plaintiff’s summary judgment motion that the motion must be denied since there were “outstanding discovery demands,” to wit, its notice for an examination before trial and its supplemental demand for discovery and inspection. The Civil [*2]Court’s order did not compel plaintiff to appear for an examination before trial and defendant has not cross-appealed. As the order only compelled plaintiff to provide written verified discovery responses to all of defendant’s written demands, only those items sought in defendant’s supplemental demand for discovery and inspection are addressed herein.

Since the supplemental demand for discovery and inspection was served on plaintiff’s counsel on October 12, 2007, and plaintiff failed to challenge the propriety of such demand for discovery and inspection within the time prescribed by CPLR 3122, plaintiff is obligated to produce the information sought therein except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). The record reveals that, in opposition to plaintiff’s motion and in support of its cross motion, defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible, as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), to recover assigned no-fault benefits, a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records and management agreements, defendant will be able to ascertain whether plaintiff is ineligible to recover assigned no-fault benefits (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

We note that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns (see CPLR 3101 [a]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is entitled to discover the information sought in item 6.

However, to the extent that defendant seeks, in item 5, to compel the production of Ms. Anikeyeva’s personal income tax returns, defendant has failed to establish its entitlement to such documents. “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). At this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s personal income tax returns are properly discoverable, particularly since defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Likewise, at this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s bank account statements, “bank account registers, cancelled checks and ledger” are “material and necessary” (CPLR 3101 [a]) to the defense of this action (see Altidor, 22 AD3d 435; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51636[U] [App Term, 1st Dept 2009]; cf. Dore, 264 AD2d 804). Accordingly, [*3]defendant is entitled to the information sought in items 12 and 13, solely with respect to plaintiff.

Item 7 seeks a copy of the assignment. However, defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, because defendant is now precluded from litigating the validity of the assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]), defendant’s demand for a copy of the assignment is palpably improper.

Finally, item 11 seeks expert witness disclosure. In view of the fact that CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information within any specifically restricted time limit, plaintiff should not be compelled to respond to item 11 at this juncture.

Accordingly, defendant is entitled to the production of the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection.

We note that, contrary to plaintiff’s contention, the Civil Court properly held that plaintiff’s motion for summary judgment was premature pending the completion of discovery (see CPLR 3212 [f]; Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637 [2010]). Plaintiff’s remaining contention lacks merit.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010