April 2, 2012

Flatlands Med., P.C. v Allstate Ins. Co. (2012 NY Slip Op 50582(U))

https://www.beynensonlaw.com/case-law/flatlands-med-p-c-v-allstate-ins-co-2012-ny-slip-op-50582u/

Court: Appellate Term, Second Department
Decided: April 2, 2012
Citation: 2012 NY Slip Op 50582(U) · 35 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Issues: Discovery and procedure Provider's prima facie case

Cite as

Flatlands Med., P.C. v Allstate Ins. Co., 35 Misc 3d 127(A), 2012 NY Slip Op 50582(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification.

Summary

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

A provider's failure to object timely to discovery demands does not require disclosure of privileged or palpably improper matters. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's request for discovery and a doctor's deposition concerning its staged-accident defense. The insurer failed to show how a doctor not alleged to have witnessed the accident would possess relevant information. Demands concerning durable medical equipment were improper because no such equipment was involved; demands arguably addressing medical necessity were improper because that defense was precluded. The provider's summary judgment motion remained denied: proof of nonpayment alone did not establish that the claims were denied after 30 days or that the denials were conclusory, vague, or legally meritless.

Reported in New York Official Reports at Flatlands Med., P.C. v Allstate Ins. Co. (2012 NY Slip Op 50582(U))

[*1]

Flatlands Med., P.C. v Allstate Ins. Co.

2012 NY Slip Op 50582(U) [35 Misc 3d 127(A)]

Decided on April 2, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2012

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

PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2010-2675 K C.

Flatlands Medical, P.C. as Assignee of CORNELL SMART, Appellant, —
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 8, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to specified discovery [*2]demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

As defendant’s discovery demands were served with defendant’s answer and plaintiff did not timely object to the discovery demands, plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). In the instant case, defendant cross-moved for summary judgment dismissing the complaint based upon a “staged accident” defense and, in the alternative, sought discovery from plaintiff, in part, to ascertain “whether Plaintiff’s assignor received the DME [durable medical equipment] at issue.” Defendant’s DME defense is palpably improper as this case does not involve DME. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintiff ordered by the Civil Court were palpably improper. To the extent the discovery demands might arguably relate to a defense of lack of medical necessity, we note that this defense was precluded, and, thus, these demands were palpably improper on this basis as well (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: April 02, 2012

Cited in this decision

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Midborough Acupuncture, P.C. v State Farm Ins. Co. (2008 NY Slip Op 28291)The insurer established grounds for discovery concerning the provider's possible fraudulent incorporation, including corporate tax information.
Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51529(U))The insurer established entitlement to corporate eligibility discovery, but failed to justify disclosure of the owner's personal tax returns.
Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co. (2008 NY Slip Op 52468(U))The insurer established grounds for corporate eligibility discovery, but failed to justify disclosure of the provider owner's personal tax returns.

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RLC Med., P.C. v Allstate Ins. Co. (2010 NY Slip Op 50642(U))The insurer established a need for discovery of facts in the provider's possession concerning alleged fraudulent incorporation.
Clinton Place Med., P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 51012(U))A provider that fails to object timely to discovery demands must respond except as to privileged or palpably improper matters.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51124(U))The insurer's SIU file was discoverable because it failed to show that the investigation began after a decision to deny the claims.
Corona Hgts. Med., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 52185(U))Discovery supporting a precluded medical-necessity defense is palpably improper even without a timely objection.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.