October 18, 2011

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51875(U))

https://www.beynensonlaw.com/case-law/stracar-med-servs-p-c-v-state-farm-mut-auto-ins-co-2011-ny-slip-op51875u/

Court: Appellate Term, Second Department
Decided: October 18, 2011
Citation: 2011 NY Slip Op 51875(U) · 33 Misc 3d 131(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 131(A), 2011 NY Slip Op 51875(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

The provider's complaint was conditionally subject to dismissal for failure to answer discovery and produce its owner for a deposition. The order required responses to the insurer's discovery demands within 45 days and production of the owner for an examination before trial within 60 days, with dismissal under CPLR 3126 upon noncompliance. CPLR 3101 (a) requires disclosure of material and necessary matter, and CPLR 3124 permits orders compelling discovery. Applying the trial court's broad discretion over discovery, the Appellate Term, Second Department, found no improvident exercise of discretion and affirmed the order, insofar as appealed from, in the insurer's favor.

Reported in New York Official Reports at Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51875(U))

[*1]

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co.

2011 NY Slip Op 51875(U) [33 Misc 3d 131(A)]

Decided on October 18, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-240 K C.

Stracar Medical Services, P.C. as Assignee of MAURICE TUCKER and ANTONETT BARTLETT, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan Lebowitz, J.H.O.), dated October 22, 2009. The order, insofar as appealed from, conditionally granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order, insofar as appealed from, is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branch of defendant’s motion seeking to dismiss the complaint, pursuant to CPLR 3126, to the extent of granting defendant’s motion to dismiss the complaint if plaintiff failed to respond to defendant’s discovery demands within 45 days and produce its owner for an examination before trial within 60 days.

CPLR 3101 (a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Pursuant to CPLR 3124, the court may grant an order compelling discovery and “a trial court is given broad discretion to oversee the discovery process” (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]; see also Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Absent an improvident exercise of that discretion, the court’s determination will not be disturbed on appeal (see Matter of US Pioneer Elecs. Corp. [Nikko Elec. Corp. of Amer.], 47 NY2d 914, 916 [1979]; Gillen v Utica First Ins. Co., 41 AD3d 647). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion. Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 18, 2011

Cited by

Delta Diagnostics Radiology, P.C. v Delos Ins. Co. (2015 NY Slip Op 51135(U))An insurer's motion to compel a provider's deposition was denied without an investigator's supporting affidavit, within the trial court's discretion.

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