City Wide Social Work v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51470(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 9, 2006. The order, insofar as appealed from, granted defendant’s motion to the extent of ordering plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denied plaintiff’s cross motion for a protective order.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order compelling examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s assignor’s treating physician, and plaintiff cross-moved for a protective order. The court below granted defendant’s motion to the extent of ordering plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denied plaintiff’s cross motion for a protective order. The instant appeal by plaintiff ensued.

CPLR 3101 (a) provides that “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The court has broad discretion in determining what is material and necessary (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), and “the burden of establishing any right to protection [from disclosure] is on the party asserting it . . .” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]).

In the instant case, the bald conclusory assertion by plaintiff’s counsel that an examination before trial of the assignor’s treating physician would be useless in proving defendant’s defense was insufficient to establish plaintiff’s entitlement to a protective order (see Dynamic Med. Communications v Norwest Trade Printers, 257 AD2d 524 [1999]; Ocean to [*2]Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265 [1988]; Boylin v Eagle Telephonics, 130 AD2d 538 [1987]). Accordingly, the court below did not improvidently exercise its discretion in granting defendant’s motion to the
extent of compelling plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denying plaintiff’s cross motion for a protective order.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008