July 27, 2015

Delta Diagnostics Radiology, P.C. v Delos Ins. Co. (2015 NY Slip Op 51135(U))

Headnote

The relevant facts the court considered in this case were that Delta Diagnostics Radiology, P.C. (the plaintiff) filed a lawsuit to recover assigned first-party no-fault benefits from Delos Insurance Company (the defendant). The defendant served demands for discovery, including a notice for a deposition of the plaintiff, but the plaintiff failed to appear for the deposition scheduled by the defendant. The defendant then moved to compel the plaintiff to appear for a deposition, but the Civil Court denied the defendant's motion on the ground that the defendant had failed to proffer an affidavit from an investigator in support of its motion. The main issue decided by the court was whether the Civil Court properly exercised its discretion in denying the defendant's motion to compel the plaintiff to appear for a deposition. The holding of the case was that the Civil Court did not improvidently exercise its discretion in denying the defendant's motion to compel the plaintiff to appear for a deposition. Therefore, the order was affirmed.

Reported in New York Official Reports at Delta Diagnostics Radiology, P.C. v Delos Ins. Co. (2015 NY Slip Op 51135(U))

Delta Diagnostics Radiology, P.C. v Delos Ins. Co. (2015 NY Slip Op 51135(U)) [*1]

Delta Diagnostics Radiology, P.C. v Delos Ins. Co.

2015 NY Slip Op 51135(U) [48 Misc 3d 137(A)]

Decided on July 27, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015

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

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2014-368 Q C

Delta Diagnostics Radiology, P.C. as Assignee of CARLY ALOUIDOR, Respondent,
against
Delos Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered January 13, 2014. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to compel plaintiff to appear for a deposition.

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 answered the complaint and served demands for discovery, including a

notice for a deposition of plaintiff. Plaintiff failed to appear for the deposition scheduled by defendant. Thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to appear for a deposition, and plaintiff opposed the motion. The Civil Court denied defendant’s motion on the ground that defendant had failed to proffer an affidavit from an investigator in support of its motion.

” [A] trial court is given broad discretion to oversee the discovery process’ ” (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]; see also Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Absent an improvident exercise of that discretion, the court’s determination will not be disturbed on appeal (see Matter of U.S. Pioneer Elecs. Corp. [Nikko Elec. Corp. of Am.], 47 NY2d 914, 916 [1979]; Silberstein v Maimonides Med. Ctr., 77 AD3d 910 [2010]; Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51875[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion.

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

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: July 27, 2015