October 15, 2013

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

https://www.beynensonlaw.com/case-law/w-w-med-p-c-v-allstate-ins-co-2013-ny-slip-op-51743u/

Court: Appellate Term, Second Department
Decided: October 15, 2013
Citation: 2013 NY Slip Op 51743(U) · 41 Misc 3d 130(A)
Posture: Other motion
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure

Cite as

W.W. Med., P.C. v Allstate Ins. Co., 41 Misc 3d 130(A), 2013 NY Slip Op 51743(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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.

A provider's tax returns generally are discoverable only on a strong showing that indispensable information is unavailable elsewhere. In this action for assigned no-fault benefits, the Appellate Term, Second Department, modified the discovery order to deny the insurer's demand for tax returns because that showing was not made. The provider's untimely objection under CPLR 3122 (a) otherwise required production except for privileged or palpably improper demands. The insurer established entitlement to depose the provider's physician under CPLR 3101 (a). The order striking the notice of trial and denying a protective order was otherwise affirmed. The provider's requests to depose the insurer's personnel and obtain investigation documents remained pending and undecided because the Civil Court had not addressed them.

Reported in New York Official Reports at W.W. Med., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51743(U))

[*1]

W.W. Med., P.C. v Allstate Ins. Co.

2013 NY Slip Op 51743(U) [41 Misc 3d 130(A)]

Decided on October 15, 2013

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3142 K C.

W.W. Medical, P.C. as Assignee of ANDREW WARREN, Appellant, —
against
Allstate Insurance Company, Respondent.

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

Cited in this decision

All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51124(U))The insurer's SIU file was discoverable because it failed to show that the investigation began after a decision to deny the claims.

Cited by

A label shows how the later decision treated this one.

Metro Psychological Servs., P.C. v Auto One Ins. Co. (2016 NY Slip Op 51376(U)) FollowedThe insurer's summary judgment motion was denied because a triable issue remained concerning medical necessity.

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Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2011 NY Slip Op 51551(U))The insurer justified financial and tax discovery on provider eligibility, but the provider's remaining discovery responses were sufficient.
All Boro Psychological Services, P.C. v Auto One Ins. Co. (2012 NY Slip Op 50777(U))A provider that misses discovery objection deadlines must respond except as to privileged or palpably improper demands.
Allstate Social Work & Psychological Servs., P.L.L.C. v Autoone Ins. Co. (2011 NY Slip Op 52295(U))A provider that fails to timely challenge discovery demands must respond except as to privileged or palpably improper matters.
Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co. (2011 NY Slip Op 52362(U))The insurer's motion to compel supplemental discovery was premature because the provider had no opportunity to respond to the new demands.
Queens Brooklyn Med. Rehab, P.C. v Allstate Ins. Co. (2011 NY Slip Op 52010(U))The insurer established special circumstances warranting disclosure of the provider's tax documents concerning licensing eligibility.