July 14, 2017

TAM Med. Supply Corp. v Country Wide Ins. Co. (2017 NY Slip Op 50921(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-country-wide-ins-co-2017-ny-slip-op50921u/

Court: Appellate Term, Second Department
Decided: July 14, 2017
Citation: 2017 NY Slip Op 50921(U)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Discovery and procedure

Cite as

TAM Med. Supply Corp. v Country Wide Ins. Co., 2017 NY Slip Op 50921(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's conflicting claim-receipt dates prevented summary judgment on late accident notice, but the provider was compelled to give discovery. The discrepancy prevented proof of timely denials asserting a precludable defense. The provider had neither answered discovery demands nor appeared for an examination before trial and did not oppose the discovery branch. Under CPLR 3101 (a), the requested disclosure was material and necessary to the insurer's fee-schedule defense. The Appellate Term, Second Department, modified the order, denied the insurer's summary judgment cross motion, and granted relief under CPLR 3126 only to compel responses within 60 days and an examination within 30 days thereafter, or an agreed date within 60 days thereafter. The provider's summary judgment motion remained denied.

Reported in New York Official Reports at TAM Med. Supply Corp. v Country Wide Ins. Co. (2017 NY Slip Op 50921(U))

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

TAM Medical Supply Corp., as Assignee of Cadet, Daniel, Appellant,
against
Country Wide Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 7, 2014. The order, upon a motion by plaintiff for summary judgment and a cross motion by defendant for summary judgment dismissing the complaint or, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126, denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is denied and the branch of defendant’s cross motion seeking, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of the order entered hereon, and by further compelling plaintiff to appear for an examination before trial within 30 days thereafter, or on such other date as the parties shall agree, but in no event later than 60 days thereafter; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126. By order entered March 7, 2014, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment.

The affidavit submitted by defendant’s claims representative stated that each claim had been received on July 31, 2012, but also stated that defendant had first received notice of the claims with the submission of the claims on July 10, 2012. In light of this discrepancy, the record does not establish, as a matter of law, that defendant timely denied plaintiff’s claims based upon a late notice of the accident (see generally Complete Radiology, P.C. v Progressive Ins. [*2]Co., 37 Misc 3d 133[A], 2012 NY Slip Op 52079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Fiutek v Clarendon Natl. Ins. Co., 33 Misc 3d 127[A], 2011 NY Slip Op 51840[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), a precludable defense. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint should have been denied.

However, the record establishes that plaintiff did not serve responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure, or appear for an examination before trial. Indeed, plaintiff failed to oppose this branch of defendant’s cross motion. 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 Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s denial of claim form denied the claim on the ground that the amount billed exceeded the amount permitted by the workers’ compensation fee schedule and as defendant is defending this action on that same ground, among others, the discovery demands at issue were material and necessary to defendant’s defense (see e.g. Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is denied and the branch of defendant’s cross motion seeking, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of the order entered hereon, and by further compelling plaintiff to appear for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 14, 2017

Cited in this decision

Complete Radiology, P.C. v Progressive Ins. Co. (2012 NY Slip Op 52079(U))The provider's summary judgment motion failed on medical necessity, but denial timeliness remained disputed for one claim.
Fiutek v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51840(U))The insurer proved the assignor's IME nonappearance, but conflicting mailing evidence prevented dismissal of one claim.
Traditional Acupuncture, P.C. v State Farm Ins. Co. (2009 NY Slip Op 51335(U))The provider was entitled to depose the insurer for material and necessary discovery under CPLR 3101 (a).
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U))An insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor.

Similar decisions

TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))The insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51238(U))The insurer's summary judgment dismissal of the second cause was affirmed after the provider's denial-mailing challenge was rejected.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.