June 23, 2009

Traditional Acupuncture, P.C. v State Farm Ins. Co. (2009 NY Slip Op 51335(U))

https://www.beynensonlaw.com/case-law/traditional-acupuncture-p-c-v-state-farm-ins-co-2009-ny-slip-op51335u/

Court: Appellate Term, Second Department
Decided: June 23, 2009
Citation: 2009 NY Slip Op 51335(U) · 24 Misc 3d 129(A)
Posture: Other motion
Outcome: Provider prevailed
Issues: Discovery and procedure

Cite as

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)

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 was entitled to depose the insurer for material and necessary discovery under CPLR 3101 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider's motion to the extent of compelling the insurer's deposition within 30 days, and denied the insurer's request for a protective order. The majority relied on the parties' entitlement to reasonable discovery of facts bearing on the controversy that would assist trial preparation. One justice concurred in the result only, stating that the deposition should occur after the provider completed the insurer's interrogatories as previously ordered.

Reported in New York Official Reports at Traditional Acupuncture, P.C. v State Farm Ins. Co. (2009 NY Slip Op 51335(U))

[*1]

Traditional Acupuncture, P.C. v State Farm Ins. Co.

2009 NY Slip Op 51335(U) [24 Misc 3d 129(A)]

Decided on June 23, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-2001 K C. NO. 2007-2001 K C

Traditional Acupuncture, P.C. a/a/o SHARRON LENARD, Appellant,
against
State Farm 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 October 30, 2007. The order, insofar as appealed from, denied plaintiff’s motion, inter alia, to compel the deposition of defendant and, in effect, granted the branch of defendant’s cross motion seeking a protective order.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon and the branch of defendant’s cross motion seeking a protective order denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, inter alia, for an order compelling the deposition of defendant and conditionally striking defendant’s answer or precluding defendant from offering evidence at trial in the event of defendant’s noncompliance. Defendant opposed the motion and cross-moved for an order compelling plaintiff to respond to defendant’s discovery demands and for a protective order. Insofar as is relevant to this appeal, the court denied plaintiff’s motion and, in effect, granted the branch of defendant’s cross motion seeking a protective order. This appeal by plaintiff ensued.

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]). In view of the foregoing, the order, insofar as appealed from, is reversed, plaintiff’s motion is granted to the extent of compelling defendant to appear for a deposition, and the branch of defendant’s cross motion seeking a protective order is denied (see Connely v Allstate Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51874[A] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I believe the decision should also note that the deposition of defendant by plaintiff should be held only after plaintiff completes defendant’s interrogatories as previously ordered by the court below.
Decision Date: June 23, 2009

Cited in this decision

A label shows how this decision treated the case it cites.

Connely v Allstate Ins. Co. (2008 NY Slip Op 51874(U)) FollowedThe provider was entitled to compel the insurer's deposition under CPLR 3101 (a) in its action for assigned no-fault benefits.

Cited by

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.
Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51133(U))The treating provider's deposition was material and necessary to the insurer's medical necessity defense despite a pending summary judgment motion.
TAM Med. Supply Corp. v Country Wide Ins. Co. (2017 NY Slip Op 50921(U))The insurer's conflicting claim-receipt dates prevented summary judgment on late accident notice, but the provider was compelled to give discovery.

Similar decisions

Lexington Acupuncture, P.C. v State Farm Ins. Co. (2007 NY Slip Op 51758(U))The provider's inadequate discovery responses and failure to oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))The provider's failure to answer discovery or oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(U))The provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply.
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))The insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims.
New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))The provider's right to appeal directly from the discovery and amendment order terminated when judgment was entered in the action.