September 10, 2008

Bronxborough Med., P.C. v Travelers Ins. Co. (2008 NY Slip Op 28343)

https://www.beynensonlaw.com/case-law/bronxborough-med-p-c-v-travelers-ins-co-2008-ny-slip-op-28343/

Court: Appellate Term, Second Department
Decided: September 10, 2008
Citation: 2008 NY Slip Op 28343 · 21 Misc 3d 21
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Bronxborough Med., P.C. v Travelers Ins. Co., 21 Misc 3d 21 (App Term, 2d Dept 2008)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to justify service of a trial subpoena beyond New York City and adjoining counties under CCA 1201. Seeking an insurer employee's trial testimony in an assigned-benefits action, the provider moved for leave to serve the insurer outside the city. The Appellate Term, Second Department, affirmed denial because the moving papers neither established that the interests of justice would be served nor identified the proposed service location. The court also stated that the provider's remedy for an allegedly improper response to its notice to admit lay in CPLR 3123 (c).

Reported in New York Official Reports at Bronxborough Med., P.C. v Travelers Ins. Co. (2008 NY Slip Op 28343)

Bronxborough Med., P.C. v Travelers Ins. Co.

2008 NY Slip Op 28343 [21 Misc 3d 21]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 12, 2008

[*1]

Bronxborough Medical, P.C., as Assignee of Mohamad Nazir, Appellant,
v
Travelers Insurance Co., Respondent.

Supreme Court, Appellate Term, Second Department, September 10, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Law Office of Karen C. Dodson, Melville (Janine Gentile of counsel), for respondent.

{**21 Misc 3d at 472} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CCA 1201, for leave to serve a subpoena on defendant outside the City of New York compelling the production of an employee of defendant to testify at the trial. The lower court found that plaintiff did not offer a valid reason to allow service of a subpoena outside the jurisdiction. Plaintiff appeals from the order denying its motion.

In an action pending in the Civil Court of the City of New York, a subpoena may not be served outside the City of New York and the adjoining counties unless the Civil Court, upon a motion establishing to the satisfaction of the court that the interests of justice would be served thereby, permits service of such a subpoena (see CCA 1201). Inasmuch as plaintiff’s moving papers failed to establish that the interests of justice would be served by permitting plaintiff to serve, outside the City of New York and the adjoining counties, a subpoena which would require defendant’s employee to appear at trial, and, in addition, did not set forth the location at which plaintiff sought to serve the subpoena, plaintiff’s motion was properly denied.

To the extent that plaintiff argues that defendant’s response to its notice to admit was improper, the court below properly noted that plaintiff’s remedy lies in the procedure set forth in CPLR 3123 (c).

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

Similar decisions

Bronxborough Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51327(U))A provider's untimely discovery objection forecloses review of the demands except for requests privileged under CPLR 3101 or palpably improper.
BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U))The provider's notice of trial and certificate of readiness were vacated because its interrogatory responses remained outstanding.
Bath Med. Supply, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 51872(U))The provider's motion to compel the insurer's deposition should have been granted because the insurer did not oppose it.
Bronxborough Med., P.C. v New Hampshire Ins. Co. (2006 NY Slip Op 51354(U))The insurer failed to raise a triable issue on IME nonappearance because it did not establish mailing of the scheduling requests.
Globe Med. Care O.L.P.C. v Travelers Ins. Co. (2010 NY Slip Op 50020(U))The insurer waived any objection to the provider's failure to file proof of service by never raising it in the action.