December 8, 2017

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

https://www.beynensonlaw.com/case-law/avalon-radiology-p-c-v-interboro-ins-co-2017-ny-slip-op-51722u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51722(U) · 58 Misc 3d 128(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Avalon Radiology, P.C. v Interboro Ins. Co., 58 Misc 3d 128(A), 2017 NY Slip Op 51722(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense. In this assigned no-fault benefits action, the insurer sought summary judgment or, alternatively, an order compelling the provider to appear for an examination before trial. The Civil Court denied the summary judgment motions and implicitly denied the alternative discovery request. The insurer's papers established service of a deposition notice and the examination's relevance to its defense. Applying CPLR 3101 (a) and Great Wall Acupuncture, P.C. v General Assur. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's cross motion seeking to compel the examination.

Reported in New York Official Reports at Avalon Radiology, P.C. v Interboro Ins. Co. (2017 NY Slip Op 51722(U))

[*1]

Avalon Radiology, P.C. v Interboro Ins. Co.

2017 NY Slip Op 51722(U) [58 Misc 3d 128(A)]

Decided on December 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Avalon Radiology, P.C., as Assignee of Latanya Anderson, Respondent,
against
Interboro Insurance Company, Appellant.

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

Cited in this decision

A label shows how this decision treated the case it cites.

Great Wall Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 28350) FollowedA timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete.

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