September 10, 2008

Connely v Allstate Ins. Co. (2008 NY Slip Op 51874(U))

https://www.beynensonlaw.com/case-law/connely-v-allstate-ins-co-2008-ny-slip-op-51874u/

Court: Appellate Term, Second Department
Decided: September 10, 2008
Citation: 2008 NY Slip Op 51874(U) · 20 Misc 3d 145(A)
Posture: Other motion
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure

Cite as

Connely v Allstate Ins. Co., 20 Misc 3d 145(A), 2008 NY Slip Op 51874(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

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

The provider was entitled to compel the insurer's deposition under CPLR 3101 (a) in its action for assigned no-fault benefits. The Appellate Term, Second Department, reversed the order denying the provider's motion and granted it to the extent of directing the insurer to appear for a deposition within 30 days of the appellate order. CPLR 3101 (a) permits full disclosure of material and necessary matters regardless of the burden of proof. Reasonable discovery includes facts bearing on the controversy that assist trial preparation by sharpening issues and reducing delay.

Reported in New York Official Reports at Connely v Allstate Ins. Co. (2008 NY Slip Op 51874(U))

[*1]

Connely v Allstate Ins. Co.

2008 NY Slip Op 51874(U) [20 Misc 3d 145(A)]

Decided on September 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1806 K C.

Peter Connely, D.C. a/a/o Samuel Sejour, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered September 4, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from offering evidence at trial in the event
of defendant’s noncompliance. Defendant opposed the motion, which was denied. This appeal by plaintiff ensued.

CPLR 3101 (a) provides for full disclosure of all matter “material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In view of the foregoing, plaintiff’s motion should have been granted to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: September 10, 2008

Cited in this decision

A label shows how this decision treated the case it cites.

Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 27135) FollowedThe insurer raised issues concerning the provider's actual operation and control that required discovery before summary judgment.

Cited by

A label shows how the later decision treated this one.

Traditional Acupuncture, P.C. v State Farm Ins. Co. (2009 NY Slip Op 51335(U)) FollowedThe provider was entitled to depose the insurer for material and necessary discovery under CPLR 3101 (a).

Similar decisions

Connely v Progressive Casualty Insurance Co. (2008 NY Slip Op 52589(U))A party that obtains all requested relief cannot appeal merely because it disagrees with the order's findings or rationale.
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 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.
A.M. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50384(U))The provider could not be compelled to produce the treating physician for deposition while the physician's employment status was unclear.
RLC Med., P.C. v Allstate Ins. Co. (2010 NY Slip Op 51962(U))The insurer established that discovery concerning the provider's alleged fraudulent incorporation was needed to oppose summary judgment.