Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51133(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 7, 2014. The order, insofar as appealed from, granted the branch of defendant’s motion seeking an order compelling plaintiff’s assignor’s treating provider to appear for a deposition and denied plaintiff’s cross motion for a protective order and sanctions.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, six days after plaintiff served a motion seeking summary judgment, defendant served a notice of deposition of plaintiff’s assignor’s treating provider. Plaintiff timely objected, arguing, among other things, that disclosure was stayed pursuant to CPLR 3214 (b). Immediately after plaintiff’s assignor’s treating provider failed to appear for the deposition, defendant moved to compel plaintiff to, among other things, produce plaintiff’s assignor’s treating provider for a deposition. Plaintiff cross-moved, inter alia, for a protective order pursuant to CPLR 3013 and to strike defendant’s notice to take deposition on the ground that the notice to take deposition was palpably improper. Insofar as is relevant to this appeal, by order entered January 7, 2014, the Civil Court granted the branch of defendant’s motion seeking to compel plaintiff’s treating provider to appear for a deposition and denied plaintiff’s cross motion. This appeal by plaintiff ensued.

CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Where, as here, defendant is defending this action on the ground that the services rendered lacked medical necessity, the court’s determination that a deposition of plaintiff’s assignor’s treating provider was material and necessary to defendant’s defense was proper (see Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also CPLR 3214 [b] [court may grant discovery notwithstanding service of a summary judgment motion]; Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]). Although plaintiff argued that defendant’s notice to take deposition was palpably improper, plaintiff failed to make such a showing (see e.g. All Boro Psychological Servs., P.C. v Allstate Ins. Co., 39 Misc 3d 9, 12 [App Term, 2d, 11th & [*2]13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is affirmed.Aliotta, J.P., Solomon and Elliot, JJ., concur.