Decided on March 8, 2019

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

Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant. Law Firm of Natalia Skvortsova, PLLC (Natalia Skvortsova and Pryanka Arora of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 1, 2016. The order denied defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

This action, commenced in 2010, involved numerous discovery disputes, during which, among other things, plaintiff’s owner, Dr. John McGee, was ordered to appear for a deposition. After that deposition and further discovery, certain of plaintiff’s claims were dismissed based on plaintiff’s “failure to comply in good faith with defendant’s discovery demands.” In 2014, Dr. McGee was ordered to appear for a second deposition, this time on the issue of whether plaintiff was in violation of state licensing requirements prohibiting nonphysicians from owning or controlling medical service corporations, “i.e. [whether] Dr. John McGee is plaintiff’s bona fide owner & operator” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 42 Misc 3d 30, 38 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013], affd 150 AD3d 192 [2017], lv granted 2017 NY Slip Op 90794[U] [2017]). At that deposition, Dr. McGee testified that he was plaintiff’s owner and sole physician, and that he performed medical and managerial tasks for plaintiff. Over defendant’s objection, and on the advice of plaintiff’s counsel—based upon her claim that, in essence, the questions [*2]were irrelevant—Dr. McGee refused to answer several questions, including those pertaining to other medical service corporations which Dr. McGee either admittedly or allegedly owned or operated during the time plaintiff was in operation, and Dr. McGee’s involvement with those corporations, including his hours and duties at those corporations.

Defendant subsequently moved to strike the complaint and dismiss the action, based on Dr. McGee’s refusal to answer questions and on plaintiff’s alleged spoliation of evidence. The Civil Court denied defendant’s motion, stating, among other things, that the questions at issue were “outside the scope of the deposition due to the fact that they had nothing to do with the plaintiff corporation.”

Contrary to the finding of the Civil Court, the questions at issue were “designed to elicit information which was material and necessary to the appellant’s defense of this action” (Parker v Ollivierre, 60 AD3d 1023, 1024 [2009]), as Dr. McGee’s involvement in other medical service corporations, including how much time he spent at those entities, could necessarily affect his involvement in the daily activities and management of plaintiff, and were relevant to whether Dr. McGee was plaintiff’s “bona fide owner [and] operator.” Moreover, counsel’s “directions not to answer [the questions at issue] were not otherwise authorized by [Uniform Rules for the Conduct of Depositions] 22 NYCRR [§] 221.2” (id. at 1024). In light of plaintiff’s failure to fully comply with discovery over many years, plaintiff’s refusal to answer the questions at issue may be presumed to be willful and contumacious (see e.g. Honghui Kuang v MetLife, 159 AD3d 878 [2018]); therefore, a sanction is warranted. Given that certain of plaintiff’s claims have already been struck based upon its noncompliance with discovery and that Dr. McGee has already been deposed twice, we find that striking plaintiff’s complaint is the appropriate sanction (see id.).

Accordingly, the order is reversed and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

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

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Law Office of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 18, 2016. The order granted defendant’s motion for leave to amend its answer and, upon amendment, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for services it had rendered to its assignor, defendant moved for leave to amend its answer to assert the affirmative defense of collateral estoppel and, upon amendment, for summary judgment dismissing the complaint. By order dated January 7, 2016, the Civil Court granted defendant’s motion.

In support of the branch of defendant’s motion seeking leave to amend its answer to assert the affirmative defense of collateral estoppel, defendant argued that an April 2014 arbitrator’s decision had found that plaintiff could not recover no-fault benefits because it was not a licensed professional medical corporation in the State of New York. Leave to amend a pleading “shall be freely given” absent prejudice or surprise resulting from the delay (CPLR 3025 [b]). Mere lateness is not a barrier to an amendment; rather, significant prejudice must be demonstrated to justify the denial of an application for an amendment (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Contrary to plaintiff’s arguments, plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendment to the answer (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), or to establish that defendant had waived its right to assert the defense. Consequently, the Civil Court properly granted the branch of defendant’s motion seeking leave to amend its answer.

With respect to the branch of defendant’s motion seeking summary judgment based on the [*2]doctrine of collateral estoppel, plaintiff’s argument on appeal as to why the doctrine of collateral estoppel does not apply in the case at bar is, essentially, that it cannot be determined if the issues to be litigated were substantially similar because defendant failed to include in its motion the evidence and documents submitted by the parties at the arbitration. In view of the fact that plaintiff does not point to any ambiguity in the arbitrator’s decision, or any distinction between the facts of this case and those underlying the arbitration, or any other meritorious argument, plaintiff has presented no basis to disturb so much of the order of the Civil Court as, upon amendment of the answer, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Davron Khuseynov from the remaining causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion, which had sought, pursuant to CPLR 603, to sever the first cause of action seeking to recover upon a claim for services rendered to Davron Khuseynov from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of two accidents and that multiple defenses had been interposed in the answer. The Civil Court denied defendant’s motion.

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply, Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In the instant matter, while the assignors were injured in separate accidents and defendant interposed 48 defenses in its answer, these two facts do not [*2]demonstrate that resolution of the claims for services rendered to each assignor will involve different questions of law and fact. As such, the record does not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion.

Accordingly, the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 11, 2016. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second and fifth causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court granted the branches of defendant’s cross motion seeking summary judgment dismissing: (1) the second cause of action on the ground that defendant had never received the underlying claim form; (2) the third cause of action on the ground that defendant had fully paid plaintiff in accordance with the workers’ compensation fee schedule; and (3) the fourth and fifth causes of action on the ground that plaintiff had failed to appear for examinations under oath (EUOs). The Civil Court also denied the branches of plaintiff’s motion seeking summary judgment on those causes of action.

Plaintiff correctly argues that it made a prima facie showing that the claim underlying the second cause of action had been mailed to defendant in accordance with plaintiff’s standard [*2]mailing practice and procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). However, defendant’s showing that it had not received the claim form at issue underlying the second cause of action demonstrated that there is a triable issue of fact as to whether this claim form was timely mailed to defendant (see Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]). As a result, neither party is entitled to summary judgment upon the second cause of action.

Plaintiff’s contention that defendant is not entitled to summary judgment upon the third cause of action will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Plaintiff argues that defendant was not entitled to summary judgment upon the fourth and fifth causes of action because the follow-up EUO scheduling letters were sent more than 10 calendar days after plaintiff had failed to appear for separately scheduled EUOs with respect to the claims underlying the fourth and fifth causes of action. The record establishes that, with respect to the claim underlying the fourth cause of action, after plaintiff failed to appear for the first scheduled EUO, defendant timely mailed a second EUO scheduling letter (see 11 NYCRR 65-3.6 [b]).

However, with respect to the claim underlying the fifth cause of action, the record establishes that, after plaintiff failed to appear for the first scheduled EUO, defendant’s follow-up scheduling letter for that EUO was mailed more than 10 days later. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.6 [b]) and the branch of defendant’s cross motion seeking summary judgment dismissing the fifth cause of action due to plaintiff’s failure to appear for EUOs should have been denied. However, the branch of plaintiff’s motion seeking summary judgment upon this cause of action was properly denied, as the proof submitted in support of plaintiff’s motion failed to establish either that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second and fifth causes of action are denied.

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