July 27, 2015

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

https://www.beynensonlaw.com/case-law/delta-diagnostics-radiology-p-c-v-delos-ins-co-2015-ny-slip-op51135u/

Court: Appellate Term, Second Department
Decided: July 27, 2015
Citation: 2015 NY Slip Op 51135(U) · 48 Misc 3d 137(A)
Posture: Other motion
Outcome: Provider prevailed
Issues: Discovery and procedure

Cite as

Delta Diagnostics Radiology, P.C. v Delos Ins. Co., 48 Misc 3d 137(A), 2015 NY Slip Op 51135(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

An insurer's motion to compel a provider's deposition was denied without an investigator's supporting affidavit, within the trial court's discretion. In an action for assigned no-fault benefits, the insurer served discovery demands and a deposition notice, but the provider failed to appear. The Civil Court denied the insurer's motion to compel because no investigator's affidavit supported it. Trial courts have broad discretion to oversee discovery, and their determinations are not disturbed absent an improvident exercise of that discretion. Upon reviewing the record, the Appellate Term, Second Department, found no such exercise and affirmed the order, insofar as appealed from, leaving the denial of the insurer's motion in place.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Cited in this decision

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51875(U))The provider's complaint was conditionally subject to dismissal for failure to answer discovery and produce its owner for a deposition.

Similar decisions

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50673(U))The provider's appeal from an order compelling depositions became academic after the action was dismissed for noncompliance.
Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 50236(U))The provider's motion to compel the insurer's deposition should have been granted because the insurer neither opposed it nor sought a protective order.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.
Delta Diagnostic Radiology, P.C. v Auto One Ins. Co. (2015 NY Slip Op 51032(U))The insurer failed to prove IME nonappearances because its healthcare professionals' sworn statements did not demonstrate personal knowledge.
Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish its prima facie case.