February 14, 2007

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

Headnote

The court considered a motion by defendant to compel the plaintiff to produce Dr. Nesen for a deposition in an action to recover assigned first-party no-fault benefits. The main issue decided in this case was whether the plaintiff should be required to produce Dr. Nesen for a deposition, as there was an issue as to whether Dr. Nesen was an employee of the plaintiff or an independent contractor at the time the treatment was rendered. The holding of the court was that the order was modified to grant the defendant's motion to compel the plaintiff to produce a witness with knowledge of Dr. Nesen's employment status for a deposition, but not to produce Dr. Nesen himself. The court found that it was unclear whether Dr. Nesen was employed by the plaintiff at the time the defendant sought such relief, and therefore erred in compelling the plaintiff to produce Dr. Nesen for a deposition. The decision was made by Pesce, P.J., Weston Patterson and Golia, JJ. on February 14, 2007.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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