February 14, 2007

A.M. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50384(U))

Headnote

The provider could not be compelled to produce the treating physician for deposition while the physician's employment status was unclear. The insurer sought discovery on whether the physician was the provider's employee or an independent contractor when treating the assignor. Under CPLR 3106 (b), the Appellate Term, Second Department, held that uncertainty about employment when the insurer sought relief precluded an order requiring the provider to produce that particular physician. It modified the order to require a witness knowledgeable about the physician's employment periods, if any, and affirmed it as modified. The provider obtained relief from the named-witness requirement, while the insurer retained discovery concerning employment status.

Reported in New York Official Reports at A.M. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50384(U))

[*1]
A.M. Med. Servs., P.C. v Allstate Ins. Co.
2007 NY Slip Op 50384(U) [14 Misc 3d 143(A)]
Decided on February 14, 2007
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-257 Q C.
A.M. Medical Services, P.C. as assignee of Peter Tochilovskiy, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered November 22, 2005. The order granted defendant’s motion to the extent of compelling plaintiff to produce plaintiff’s assignor’s treating physician, Dmitry Nesen, M.D., for a deposition.

Order modified by providing that defendant’s motion to compel plaintiff to appear for a deposition is granted to the extent of requiring plaintiff to produce a witness with knowledge of the dates, if any, commencing January 1, 2001 to the present, during which Dmitry Nesen, M.D. was an employee of plaintiff, for a deposition within 60 days
after service of a copy of the order entered hereon; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order, inter alia, compelling plaintiff to submit to depositions on the ground that there was an issue as to whether Dmitry Nesen, M.D., the physician who allegedly treated plaintiff’s assignor, was an employee of plaintiff or an independent contractor at the time the treatment was rendered (see generally A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). The court granted defendant’s motion to the extent of requiring plaintiff to produce Dr. Nesen for a deposition and this appeal ensued.

Inasmuch as it is unclear whether Dr. Nesen was employed by plaintiff when defendant sought such relief, the court erred in compelling plaintiff to produce Dr. Nesen for a deposition (see CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; Schneider v Melmarkets Inc., 289 AD2d 470 [2001]; Zappolo v Putnam Hosp. Center, 117 AD2d 597 [1986]). However, since defendant’s motion sought to compel plaintiff to appear for a deposition regarding Dr. Nesen’s employment status when he
treated plaintiff’s assignor, defendant’s motion should have been granted to the extent of requiring plaintiff to produce a witness with such knowledge for deposition upon oral examination (see Kryzhanovskaya v City of New York, 31 AD3d 717 [2006]).

We note that while the court below relied upon Matter of Haas v Costigan (14 AD2d 809 [1961]), said case does not entitle defendant, at this juncture, to an order compelling plaintiff to produce Dr. Nesen for a deposition since it is both factually and legally distinguishable.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 14, 2007

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