Avalon Radiology, P.C. v Interboro Ins. Co. (2017 NY Slip Op 51722(U))

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2313 K C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2014. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross 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 cross 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Insofar as is relevant to this appeal, upon denying plaintiff’s motion for summary judgment and the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, the Civil Court implicitly denied the branch of defendant’s cross motion seeking, in [*2]the alternative, to compel plaintiff to appear for an 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 lack of medical necessity 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 2008]), 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 cross 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.