W.W. Med., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51743(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered July 26, 2010. The order granted defendant’s motion to strike the notice of trial, compel plaintiff to provide full and complete responses to defendant’s discovery demands, and produce Dr. Wilkins Williams for an examination before trial, and denied the branch of plaintiff’s cross motion seeking a protective order.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to provide full and complete responses to defendant’s
discovery demands is denied with regard to so much of the demand for document
production as sought to compel plaintiff to produce copies of its federal, state, and local income tax returns from 2007 to the present; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion to strike the notice of trial, compel plaintiff to provide full and complete responses to defendant’s discovery demands, and produce Dr. Wilkins Williams for an examination before trial (EBT), and denied the branch of plaintiff’s cross motion seeking a protective order.

While plaintiff argues that defendant is not entitled to the discovery ordered by the court, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s demand for document production (see CPLR 3122 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]; see also Benfeld v Fleming Props., LLC, 44 AD3d 599 [2007]). Here, defendant failed to demonstrate that plaintiff’s tax returns were properly discoverable and, as a result, at this juncture, defendant’s request for such documentation should have been denied. Defendant, however, established its [*2]entitlement to depose Dr. Wilkins Williams (see CPLR 3101 [a]; see also All Boro Psychological Servs., P.C., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U]). In light of the foregoing, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff’s cross motion seeking a protective order.

Plaintiff’s contentions concerning those branches of its cross motion which sought to compel defendant to produce its special investigator and claims examiner for EBTs and to produce all documentation connected to its Special Investigation Unit’s investigation are not properly before this court. Since the Civil Court did not address these branches of plaintiff’s cross motion, they remain pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Young Chool Yoo v Rui Dong Wang, 88 AD3d 991 [2011]; Katz v Katz, 68 AD2d 536, 542-543 [1979]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to provide full and complete responses to defendant’s discovery demands is denied with regard to so much of the demand for document
production as sought to compel plaintiff to produce copies of its federal, state, and local income tax returns from 2007 to the present.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 15, 2013