July 21, 2017

Dana Chiropractic, P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 50944(U))

https://www.beynensonlaw.com/case-law/dana-chiropractic-p-c-v-usaa-cas-ins-co-2017-ny-slip-op-50944u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50944(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Dana Chiropractic, P.C. v USAA Cas. Ins. Co., 2017 NY Slip Op 50944(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

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

An order continuing a summary judgment motion pending discovery is not appealable as of right. The Civil Court compelled the provider to produce its owner for a deposition and continued the provider's summary judgment motion pending discovery under CPLR 3212 (f). The Appellate Term, Second Department, dismissed the appeal from the continuance under CCA 1702 (a) (2), because leave had not been granted. It affirmed the order, insofar as reviewed, concluding that the insurer was entitled to depose the provider's owner under CPLR 3101 (a).

Reported in New York Official Reports at Dana Chiropractic, P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 50944(U))

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

Dana Chiropractic, P.C., as Assignee of Araujo, Carmencita, Appellant,
against
USAA Casualty Ins. Co., Respondent.

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. McDonnell & Adels, PLLC (Stephanie Tebbett, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 17, 2014. The order granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery.

ORDERED that so much of the appeal as is from the portion of the order that, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery is dismissed, as that portion of the order is not appealable as of right (see CCA 1702 [a] [2]) and leave to appeal therefrom has not been granted; and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial, and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery (see CPLR 3212 [f]).

Contrary to plaintiff’s contention, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Accordingly, the [*2]order, insofar as reviewed, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 21, 2017

Cited in this decision

Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co. (2008 NY Slip Op 52468(U))The insurer established grounds for corporate eligibility discovery, but failed to justify disclosure of the provider owner's personal tax returns.
Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51529(U))The insurer established entitlement to corporate eligibility discovery, but failed to justify disclosure of the owner's personal tax returns.

Similar decisions

Clinton Place Med., P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 51012(U))A provider that fails to object timely to discovery demands must respond except as to privileged or palpably improper matters.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co. (2025 NY Slip Op 51972(U))The insurer failed to establish lack of coverage with an affidavit addressing a different company's insurance records.
Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.
J.K.M. Med. Care, P.C. v USAA Gen. Indem. Co. (2018 NY Slip Op 50818(U))A provider that fails to timely object to discovery demands must respond unless the demands are privileged or palpably improper.