June 23, 2016

Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co. (2016 NY Slip Op 51014(U))

Headnote

The court considered the fact that the defendant had served the plaintiff with a notice for an examination before trial, which was material and necessary to the defendant's defense in an action by a provider to recover assigned first-party no-fault benefits. The main issue before the court was whether the branch of the defendant's motion seeking to compel the plaintiff to appear for an examination before trial should be granted. The court held that the branch of the defendant's motion seeking to compel the plaintiff to appear for an examination before trial should have been granted as the examination was material and necessary to the defendant's defense, and therefore reversed the order, granting the branch of defendant's motion and ordering the examination to be held within 60 days.

Reported in New York Official Reports at Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co. (2016 NY Slip Op 51014(U))

Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co. (2016 NY Slip Op 51014(U)) [*1]

Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co.

2016 NY Slip Op 51014(U) [52 Misc 3d 133(A)]

Decided on June 23, 2016

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2390 K C

Atlantic Radiology Imaging, P.C., as Assignee of Mohammad Feroz, Respondent,
against
Interboro Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered September 13, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial (EBT).

As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 23, 2016