June 25, 2012

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))

Headnote

The main issue in this case was whether the defendant insurer's motion to strike the notice of trial and compel discovery should have been granted or denied. The court considered the plaintiff's appeal from the order of the Civil Court of the City of New York, Bronx County, which granted the defendant's motion. The court held that the defendant's demands for discovery pertaining to its affirmative defense that another insurance carrier was primarily liable were immaterial and improper. The court also determined that the defendant had not set forth any case-specific allegations in support of its defense that the plaintiff was fraudulently incorporated. Therefore, the defendant's motion to strike the notice of trial and compel discovery was reversed and denied.

Reported in New York Official Reports at Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U)) [*1]

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co.

2012 NY Slip Op 51165(U) [36 Misc 3d 127(A)]

Decided on June 25, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Shulman, Torres, JJ
570718/11.

Pomona Medical Diagnostic P.C. a/a/o Kevin Dalberiste, Plaintiff-Appellant, – –
against
Adirondack Insurance Company, Defendant-Respondent.

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), dated March 30, 2011, as granted defendant’s motion to strike the notice of trial and compel discovery.

Per Curiam.

Order (Jose A. Padilla, J.), dated March 30, 2011, insofar as appealed from, reversed, with $10 costs, and motion denied.

The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2012