August 2, 2006

Statewide Med. Acupuncture, P.C. v Travelers Ins. Co. (2006 NY Slip Op 51515(U))

Headnote

The court considered the defendant's appeal from an order of the Civil Court, which denied its cross motion to compel discovery and granted the plaintiff's motion for a protective order. The main issue decided was whether the plaintiff must fully respond to item 10 of the defendant's demand for discovery and inspection, and comply with the defendant's amended notice of examination before trial. The court held that the plaintiff is directed to fully comply with item 10 of the demand for discovery and inspection, as it pertains to the employment status of the treating health provider and is relevant to the issue of whether the medical services were performed by an independent contractor. The court also held that the plaintiff's motion for a protective order with regard to the defendant's remaining discovery demands was properly granted, as the disclosure sought was deemed improper, duplicative, unduly burdensome, irrelevant, and pertaining to defenses not at issue in the case. Furthermore, the court ruled that the defendant did not meet the threshold requirement of "good cause" and was not entitled to disclosure pertaining to a defense related to potential fraudulent incorporation of a professional corporation.

Reported in New York Official Reports at Statewide Med. Acupuncture, P.C. v Travelers Ins. Co. (2006 NY Slip Op 51515(U))

Statewide Med. Acupuncture, P.C. v Travelers Ins. Co. (2006 NY Slip Op 51515(U)) [*1]

Statewide Med. Acupuncture, P.C. v Travelers Ins. Co.

2006 NY Slip Op 51515(U) [12 Misc 3d 146(A)]

Decided on August 2, 2006

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McCOOE, J.P., GANGEL-JACOB, SCHOENFELD, JJ
570064/06.

Statewide Medical Acupuncture, P.C., a/a/o Bridgette Shaw, Plaintiff-Respondent,
against
Travelers Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court, Bronx County (Sharon A.M. Aarons, J.), dated April 4, 2005, which denied its cross motion to compel discovery and granted plaintiff’s motion for a protective order.

PER CURIAM:

Order (Sharon A.M. Aarons, J.), dated April 4, 2005, modified to direct plaintiff to fully respond to item 10 of defendant’s demand for discovery and inspection and to comply with defendant’s amended notice of examination before trial, and as modified, affirmed, with $10 costs.

Item 10 of defendant’s demand for discovery and inspection, which calls for information pertaining to the employment status of the treating health provider, is relevant to the issue of whether the medical services were performed by an independent contractor (see 11 NYCRR 65-3.11 [a]). Plaintiff only submitted a partial response to item 10 of defendant’s demand and is accordingly directed to fully comply therewith. Plaintiff is also directed to comply with the defendant’s amended notice of examination before trial, requesting the depositions of Dr. Dipak Nandi, plaintiff’s president, and of Nan Ni Gilbert, Lic. Ac., the treating provider, as their testimony bears directly upon the foregoing defense.

Plaintiff’s motion for a protective order with regard to defendant’s remaining discovery demands was properly granted even if the motion was not timely made, as the disclosure sought was palpably improper because it was duplicative (see Matter of Williamson, 261 AD2d 147 [1999]), unduly burdensome (see Albert v Time Warner Cable, 255 AD2d 248 [1998]), irrelevant (Duhe v Midence, 1 AD3d 279 [2003]), and pertained to defenses not at issue in this case. Finally, while an insurer may delay payment of a claim to investigate whether a professional corporation was fraudulently incorporated, defendant has failed to meet the threshold requirement of “good cause” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and thus is not entitled to disclosure pertaining to such defense. [*2]

This constitutes the decision and order of the court.

Decision Date: August 02, 2006