July 27, 2015

Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51133(U))

https://www.beynensonlaw.com/case-law/farshad-d-hannanian-m-d-p-c-v-allstate-ins-co-2015-ny-slip-op51133u/

Court: Appellate Term, Second Department
Decided: July 27, 2015
Citation: 2015 NY Slip Op 51133(U)
Posture: Other motion
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Discovery and procedure

Cite as

Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51133(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.

The treating provider's deposition was material and necessary to the insurer's medical necessity defense despite a pending summary judgment motion. The insurer noticed the deposition six days after the provider served its motion. The provider objected under CPLR 3214 (b), and the insurer moved to compel after nonappearance. Under CPLR 3101 (a), reasonable discovery includes facts bearing on the controversy; CPLR 3214 (b) permits court-authorized discovery despite service of a summary judgment motion. The provider also failed to show the notice was palpably improper. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling the deposition and denying the provider's cross motion for a protective order and sanctions.

Reported in New York Official Reports at Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51133(U))

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

Farshad D. Hannanian, M.D., P.C. as Assignee of MAKEDA PINNOCK, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 7, 2014. The order, insofar as appealed from, granted the branch of defendant’s motion seeking an order compelling plaintiff’s assignor’s treating provider to appear for a deposition and denied plaintiff’s cross motion for a protective order and sanctions.

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, six days after plaintiff served a motion seeking summary judgment, defendant served a notice of deposition of plaintiff’s assignor’s treating provider. Plaintiff timely objected, arguing, among other things, that disclosure was stayed pursuant to CPLR 3214 (b). Immediately after plaintiff’s assignor’s treating provider failed to appear for the deposition, defendant moved to compel plaintiff to, among other things, produce plaintiff’s assignor’s treating provider for a deposition. Plaintiff cross-moved, inter alia, for a protective order pursuant to CPLR 3013 and to strike defendant’s notice to take deposition on the ground that the notice to take deposition was palpably improper. Insofar as is relevant to this appeal, by order entered January 7, 2014, the Civil Court granted the branch of defendant’s motion seeking to compel plaintiff’s treating provider to appear for a deposition and denied plaintiff’s cross motion. 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]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Where, as here, defendant is defending this action on the ground that the services rendered lacked medical necessity, the court’s determination that a deposition of plaintiff’s assignor’s treating provider was material and necessary to defendant’s defense was proper (see Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also CPLR 3214 [b] [court may grant discovery notwithstanding service of a summary judgment motion]; Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]). Although plaintiff argued that defendant’s notice to take deposition was palpably improper, plaintiff failed to make such a showing (see e.g. All Boro Psychological Servs., P.C. v Allstate Ins. Co., 39 Misc 3d 9, 12 [App Term, 2d, 11th & [*2]13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is affirmed.Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decision Date: July 27, 2015

Cited in this decision

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

Traditional Acupuncture, P.C. v State Farm Ins. Co. (2009 NY Slip Op 51335(U))The provider was entitled to depose the insurer for material and necessary discovery under CPLR 3101 (a).
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U)) FollowedAn insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 23043)The insurer established a basis for Mallela discovery, defeating the provider's summary judgment motion.

Cited by

A label shows how the later decision treated this one.

North Bronx Med. Health Care v Auto One Ins. Co. (2016 NY Slip Op 51625(U)) FollowedThe insurer was entitled to depose the treating doctor, but factual issues on medical necessity defeated summary judgment on both claims.
Huntington Regional Chiropractic, P.C. v Mercury Cas. Co. (2015 NY Slip Op 51900(U)) FollowedThe provider raised a medical-necessity issue but could not avoid a material and necessary deposition by serving written discovery responses.
Prepetit Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51879(U)) FollowedThe insurer's motion to compel the provider to appear for a deposition was granted and upheld on appeal.

Similar decisions

Tsatskis v Interboro Mut. Ins. Co. (2015 NY Slip Op 51891(U))An insurer may depose a provider on a preserved medical-necessity defense without first showing inadequate written discovery responses.
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.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 50870(U))An insurer's SIU file is discoverable unless the insurer establishes that it was prepared solely for litigation.
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.
S.J. Pahng, M.D., P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51513(U))The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense.