November 3, 2017

S.J. Pahng, M.D., P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51513(U))

https://www.beynensonlaw.com/case-law/s-j-pahng-m-d-p-c-v-autoone-ins-co-2017-ny-slip-op-51513u/

Court: Appellate Term, Second Department
Decided: November 3, 2017
Citation: 2017 NY Slip Op 51513(U) · 57 Misc 3d 149(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

S.J. Pahng, M.D., P.C. v AutoOne Ins. Co., 57 Misc 3d 149(A), 2017 NY Slip Op 51513(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense. In this action to recover assigned first-party no-fault benefits, the Civil Court denied the branch of the insurer's motion seeking to compel the provider to appear for an examination before trial. The insurer's moving papers established that it had served a deposition notice and that the examination was material and necessary to its defense. Applying CPLR 3101 (a) and Great Wall Acupuncture, P.C. v General Assur. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to compel the examination.

Reported in New York Official Reports at S.J. Pahng, M.D., P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51513(U))

[*1]

S.J. Pahng, M.D., P.C. v AutoOne Ins. Co.

2017 NY Slip Op 51513(U) [57 Misc 3d 149(A)]

Decided on November 3, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2842 Q C

S.J. Pahng, M.D., P.C., as Assignee of Jin Hee Ma, Respondent,
against
AutoOne Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Richard W. Shin, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 6, 2014. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of a motion by defendant seeking to compel plaintiff to appear for an examination before trial (EBT).

As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017

Cited in this decision

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

Great Wall Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 28350) FollowedA timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete.

Similar decisions

Holtsville Chiropractic, P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51516(U))The insurer's motion to compel a provider deposition and strike the notice of trial was granted on appeal.
Bay Plaza Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 51082(U))The insurer was entitled to a provider deposition on medical necessity, but a triable factual issue precluded summary judgment.
Avalon Radiology, P.C. v Interboro Ins. Co. (2017 NY Slip Op 51722(U))The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense.
North Bronx Med. Health Care v Auto One Ins. Co. (2016 NY Slip Op 51625(U))The insurer was entitled to depose the treating doctor, but factual issues on medical necessity defeated summary judgment on both claims.
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U))An insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor.